I concur in the result of Justice McALISTER'S opinion but not in his reasoning and feel that I should state why.
The State of Arizona is not liable for the wages of employees of the university and it should not have been made a party. The indebtedness, if any, was incurred and is owing by the University of Arizona and not by the state. If the state auditor, providing the claims were legal charges against the university, should have refused to allow them, or if the state treasurer, there being funds in the current appropriation for the university to meet them, should have refused to pay warrants drawn therefor, these officers might properly have been made parties and compelled to do their duty of auditing or paying the claims. The state contracts no debts for the university. It has by a special act incorporated such institution and expressly conferred on it the power and duty of engaging its president, professors, teachers, and other employees and of fixing their salaries. Section 1135, Revised Code of 1928. The university is a separate legal entity, just as much so as the Southern Pacific Railroad Company or the Phelps-Dodge Corporation; "may sue and be sued; may purchase, receive, hold, and sell property, real and personal, for the benefit of the state of Arizona and the use of said university; may contract and be contracted with; and adopt a corporate seal." Section 1132, Id. So, the Board of Regents of the University of Arizona alone could have incurred the indebtedness and it alone should have been sued.
It is shown that the university paid plaintiff and his assignors everything it agreed to pay them and *Page 263 that the amounts sued for are claimed under what is commonly referred to as the Minimum Wage Law. That law, it seems to me, does not reach the university and its employees and was never intended to. The minimum wage provisions are a part of chapter 24, Revised Code of 1928, entitled "Employer and Employee" (section 1350 et seq.), as amended by chapter 12, Laws of 1933. The persons entitled to be paid the minimum per diem wages fixed by the State Highway Commission are "persons doing manual or mechanical labor employed by or on behalf of the state, or of any of its political subdivisions." See section 1350 as amended. The university is not a political subdivision of the state. Its functions are not political and, besides, it operates all over the state, every part alike. If it be suggested that persons doing manual or mechanical labor for the university are "employed by or on behalf of the state" and come within the terms of the Minimum Wage Law, I would call attention to the legislature's definition of that phrase. The last sentence of section 1350,supra, as amended by Laws 1933, chap. 12, § 1, says:
"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." (Italics mine.)
The phrase is confined to persons working in the "execution of any contract with the state, or with any of its political subdivisions." There is no showing that plaintiff or his assignors were working in the execution of any such contract. At most it is shown that they were working for the university, on its experimental farm, for wages, but not in the execution of any contract with the state. *Page 264
The language of the legislature seems very clear to me that it intended to limit the minimum wage to contracts with the state and its political subdivisions, and not to reach out and cover the state university. Of course it could have employed language showing an intent and purpose to place the university in the same category as cities and towns, the counties and the state but it did not do so. I think the whole context of chapter 24, Revised Code of 1928, entitled "Employer and Employee," as amended, when read and considered, negatives any intention on the part of the legislature to extend the Minimum Wage Law to the university and its employees.
The penalty fixed by section 1353, Revised Code of 1928, as amended by chapter 12, Laws 1933, indicates very strongly the meaning the legislature intended to give the preceding sections in said chapter. This section reads:
"Sec. 1353. Violations Defined; Penalty. Any officer of the state or any of its political subdivisions, or any person acting under or for such officer or any contractor or sub-contractor of the state, or any political subdivision thereof, or otherperson violating any provision of the eight preceding sections of this article, is guilty of a misdemeanor and shall for every offense be punished by a fine of not less than fifty dollars, nor more than one thousand dollars, or by imprisonment not more than six months, or both such fine and imprisonment." (Italics mine.)
The regents of the university (with the exception of the Governor) are not officers of the state, or any of its political subdivisions, or contractors or sub-contractors thereof, and yet these or "other person" are the only persons punishable for violating the Minimum Wage Law. "Other person" cannot reasonably or fairly be held to refer to the members of the board of regents, for nowhere in the chapter is *Page 265 used any language referring to the University of Arizona or its regents or placing any duty on them in connection with the Minimum Wage Law.