I am very sorry not to be able to agree with the other members of the court as to the disposition of this case. It seems to me the question for decision is, Which is the correct rule for determining the compensation of employees of "the capitol building and grounds" for the fiscal years 1937-1938 and 1938-1939, the one announced by the legislature or the one under the Minimum Wage Law?
The capitol building and grounds are under the charge and control of the board of directors of state institutions. Section 2918, Rev. Code 1928. The legislature has not by any provision of law designated the number and kind of employees for the capitol building and grounds but has left that, under the provisions of sections 62 and 2922, Id., to said board. The legislature, presumably upon a list of such employees, together with a schedule for salaries and wages to be paid them, furnished by the board, on March 23, 1937, provided in the general appropriation bill (chap. 73, Laws of 1937), as follows: *Page 27
"Section 1. The following sums herein set forth are hereby appropriated for the fiscal years beginning July 1, 1937, and ending June 30, 1938, hereinafter designated as the 26th Fiscal Year, and beginning July 1, 1938, and ending June 30, 1939, hereinafter designated as the 27th Fiscal Year, for the several purposes and objects as hereinafter specified, . . ."
Here follow 74 subdivisions of section 1, subdivision 18 being as follows:
"Subdivision 18. Capitol Buildings and Grounds.
For the 26th For the 27th
Fiscal Year Fiscal Year
Salaries and Wages:
Salary-Custodian ............................. $ 2,400.00 $ 2,400.00
Watchman (3 at $1,350.00 each) ............... 4,050.00 4,050.00
Watchman — Periodic .................... 168.75 168.75
Engineer ..................................... 1,920.00 1,920.00
Elevator Operator ............................ 1,080.00 1,080.00
Maid ......................................... 972.00 972.00
Head Gardener ................................ 1,620.00 1,620.00
Janitors (6 at $972.00 each) ................. 5,832.00 5,832.00
Janitor — Periodic ..................... 283.50 283.50
Porter ....................................... 1,455.00 1,455.00
Labor — Periodic ....................... 4,218.75 4,218.75
__________ __________
Total Salaries and Wages ..................... $24,000.00 $24,000.00
Operation ....................................... 10,000.00 10,000.00
Repairs and Replacements ........................ 1,200.00 1,200.00
__________ __________
Total Appropriation .......................... $35,200.00 $35,200.00
$70,400.00."
These are the sums the board of directors of state institutions may expend during the fiscal years 1937-1938 and 1938-1939 for the objects and purposes named. Such board may not expend or contract any sum or sums, as I view it, in excess of these appropriations.
As I understand it, the board of directors of state institutions employed and paid the help, including plaintiff and his assignors, for the capitol building and grounds in accordance with the appropriation, which items of course were considered by the state tax commission *Page 28 in fixing the rate of taxes for the biennium 1937-1938 and 1938-1939.
In August, 1937, the state highway commission, in disregard of the items of the budget for state expenses, raised hourly wages of such employees to 62 1/2¢. The plaintiff and his assignors accepted the wages or salaries as fixed by the legislature and thereafter sued the state for the difference, amounting to $6,311.28, and on this sum they ask 6 per cent. from June 21, 1938.
The legislature is the body that makes the laws. It created the highway commission and gave it all the powers it possesses. The legislature can take from the commission any power it has given it. It may do this directly or indirectly. While the legislature has said the wage standards fixed by the highway commission shall be paid certain employees of the state and its subdivisions, that standard cannot be substituted for a salary or wage fixed by the legislature itself.
To allow a recovery in this case is to ignore the legislative intent as expressed in the general appropriation bill. An intent clearly expressed in such bill is just as enlightening and binding as if expressed in any other legislation. As before said, the plaintiff and his assignors were appointed or employed under the provisions of sections 62 and 2922, supra. Section 62 will bear quotation in full. It reads:
"§ 62. Deputies; employees; salaries. Every state officer, board or commission may appoint deputies, if authorized by law, and may appoint assistants, clerks, and employees for the prompt discharge of the duties of the office. No salary orcompensation, however, shall be paid unless the same isauthorized in the appropriation for that office, board orcommission. The salaries and compensation of all deputies,assistants, clerks and employees shall be in the amount as fixedin the appropriation for that office in the general appropriationbill." (Italics ours.) *Page 29
This section has not been repealed or amended. It stands as an expression of the legislative intent today as much so as it did when it was passed. It was suspended for two years. See StateBoard of Health v. Frohmiller, 42 Ariz. 231, 23 P.2d 941. According to such section, salaries and compensation of plaintiff and his assignors is the "amount as fixed in the appropriation for that office in the general appropriation bill." Under such section, the board of directors of state institutions is not permitted to pay out for the capitol building and grounds any sum other than the appropriation made therefor.
Another straw indicating clearly the intention of the lawmaking body is found in section 2 of the 1937 general appropriation bill reading:
"Section 2. The appropriations herein made are subject to the provisions of the State Financial Code. . . ."
Section 2618, Revised Code of 1928, part of the Financial Code, provides that
". . . No officer or state agency shall contract any indebtedness on behalf of the state, nor assume to bind the state in excess of the money appropriated, unless expressly authorized by law. Amounts paid from the appropriations for personal service of any officer or employee of the state shall be full payment for all services rendered between the dates specified on the payroll and no additional sum shall be paid to such officer or employee. . . ."
The reference in the general appropriation bill of 1937 to the Financial Code expresses the legislative intent, wish and desire, and that is, or should be, the controlling factor so far as this court is concerned. As we have seen, the act of the highway commission in August, 1937, fixing wages as 62 1/2¢ per hour could not possibly set aside the act of the legislature fixing a different compensation for employees of the capitol *Page 30 building and grounds. It is true the minimum wage statute quoted by Judge LOCKWOOD'S opinion says not less than the wages fixed by the highway commission shall be paid certain kinds of employees of the state, but that is a general rule. It cannot prevail against an act of the legislature specifically fixing wages and salaries of employees.
The legislature has said and done everything it can to keep officers and employees from exceeding budgets, which are regularly prepared by the different officers, agencies, boards and commissions of the state under law for the protection of the taxpayers, and I do not see myself how we can disregard that legislation. I believe the legislature should still "hold the purse strings."