I am unable to concur in the conclusion reached by my colleagues in disposing of the motion for rehearing and will state briefly why.
If I understand it correctly, the holding is that under the minimum wage law it was the duty of the city to pay appellee and his assignors from and after August 1, 1937, the wages fixed by the highway commission on that day, and that this is true regardless of the fact that the budget adopted by it on July 20, 1937, for the fiscal year — July 1, 1937, to June 30, 1938 — was based on the wage schedule then in force and payment of the new wage, an increase of 12 1/2 per cent. over the one it superseded, would have had the effect of exhausting its budget before the end of that fiscal year. Because, therefore, there were not sufficient funds in the budget to keep all those paid out of it employed for the next eleven months at the new wage, the old rate was used, but the increase was earned by appellee and his assignors just the same and, hence, became, as a matter of law, encumbered each month, thus rendering it unlawful for the city to use it for any purpose other than to turn over to them. Inasmuch, however, as payment of the new wage from August 1, 1937, would have exhausted the budget somewhere near the first of April, 1938, and the city had no right to employ anyone after that date to be paid out of it, my colleagues say that any work done for the city by appellee and his assignors between that date and the close of the fiscal year, June 30, 1938, was *Page 134 illegally performed, and that any money paid them therefor by the city was for the same reason unlawfully expended. Such being the situation, appellee and his assignors are, it is held, entitled to judgment for the increased wage from August 1, 1937, or whenever he or they began work, until the budget was exhausted, but the city is entitled to offset the amount due each worker with that the city illegally paid him following the exhaustion of the budget, that is, between April 1, 1938, or thereabouts, and June 30th thereafter.
The result of this view is that if the unpaid increase of 12 1/2 per cent. the city owes appellee and his assignors for the time each worked prior to the exhaustion of the budget exceeds the amount he was paid after that occurred, he would be entitled to judgment for the difference, but if he was paid more after the budget was exhausted than the increase he had earned prior to that time amounted to, the same being encumbered and still due him, the city would be entitled to judgment for the difference. This means, of course, that appellee and those of his assignors who worked for the city any or all of the time between the exhaustion of the budget and the end of the fiscal year, June 30, 1938, will receive nothing whatever for the labor performed by them during those three months, because the city, having exceeded its budget in paying for these services, may recover from each the amount he received, and thus unjustly enrich itself to that extent, while appellee and his assignors are left helpless, since they can neither get back their labor nor retain what they have been paid for it. In other words, their labor during these three months amounts merely to a donation to the city. Even if this, as a cold question of law, be technically correct, the result it produces is so inequitable that a solution avoiding it ought to be found, if possible, and one of the propositions urged *Page 135 in the motion for rehearing appears to me sound and when applied to lead to a more just and satisfactory conclusion.
There is no question but that after August 1, 1937, it was the duty of the city to pay all those who continued in that department the wages fixed that day for such labor by the highway commission, but there was another duty just as binding upon the city and that was either to secure an emergency appropriation to take care of the increase for the fiscal year, the sole alternative in case all employees were retained, or reduce its employees in the department to such an extent that the wages of those remaining during the balance of the fiscal year would not exceed the department's budget. This is true because the record discloses that appellee and his assignors were under the classified civil service of the city and in no other way could these regulations which have the force of law be observed. The city did not seek an emergency appropriation, so the only other course it could have followed that would have enabled it to pay the minimum wage, observe the budget law and at the same time comply with its civil service requirements was to reduce the number of its employees. It could have done this perhaps in two ways, first, by transferring some of them to other departments, a method that should have been followed as far as possible; second, by laying off those it could not transfer. In doing this it was necessary that it lay off those whose rank in the length of service or in efficiency, provided that department maintained efficiency records, were lowest, the others following in order until the wages of those remaining would not have exceeded the budget, and have retained those who ranked first in time served or in efficiency. Rule VIII, section 1, item 2, of the Rules of the Civil Service Board of the City of Phoenix, approved April 3, 1936, says: *Page 136
"Lay-offs shall be made in the order of the least seniority or lowest efficiency. In the absence of efficiency records, lay-offs shall be made in the order of least seniority. In departments maintaining efficiency records, approved by the Board, lay-offs may be made in accordance with the said efficiency records instead of seniority standing, the least efficient to be laid off first. The efficiency record for not less than the past six months' shall be used."
In no other way could the seniority or efficiency of those in the department have been observed or protected and unless it is, civil service has practically no reason for existence. If all the employees of the department in which appellee and his assignors were working were permitted to continue after the wage increase, in the face of the fact that their doing so would exhaust the budget several months before the end of the fiscal year, it is clear that one's seniority in rank or efficiency would give him no advantage. When it becomes apparent to the city authorities that the budget for any department is insufficient for the fiscal year or what remains of it, the situation is met practically by laying off employees with the lowest rank in length of service or efficiency and if in doing this a mistake is made either intentionally or inadvertently and one whose seniority or efficiency is higher than others on the payroll is laid off, that person, upon proof of this fact, would be reinstated by the court and awarded his salary for that period. City of Phoenix v.Sittenfeld, 53 Ariz. 240, 88 P.2d 83.
As I see it, therefore, the judgment should be reversed and the case remanded with direction to the trial court to ascertain first how much the payroll of the department in which appellee and his assignors were working should have been reduced after August 1, 1937, to bring its expenditures for wages within its budget for the remainder of that fiscal year, that is, until June 30, 1938, and, second, which employees *Page 137 ranked lowest in length of service or in efficiency, provided an efficiency record was kept by the department. When these two facts are ascertained, judgment for the increase of 12 1/2 per cent. should be rendered in favor of each employee in this action who, by reason of his seniority or efficiency was entitled to continue his employment for the remainder of the fiscal year from the day he began work, whether on August 1, 1937, or subsequent thereto.