I concur in the opinion of Judge LOCKWOOD. It is well stated and, in my judgment, reaches the correct conclusion *Page 24 as to the law of the case. My only reason for making this special statement is that I do not feel that there is under the facts any occasion even to question the ethical or moral right of the plaintiff and his assignors to recover from the state, if they can, what the opinion so clearly shows they are entitled to as a matter of law.
It is true that in March, 1937, the thirteenth legislature appropriated the amount it intended the plaintiff and his assignors to receive each month, during the two-year period beginning July 1, 1937; that on August 1st thereafter the highway commission raised the minimum per diem wages to be paid manual and mechanical workers employed by the state or any of its political subdivisions, among whom were the plaintiff and his assignors; and that, instead of claiming the increased amount from that time on, they continued for months to accept that given them in the general appropriation bill and only a short time before the one-year period of limitation had run against any portion of the increased wage filed suit therefor. The ethics of their act in asking for the additional sum, after accepting the lesser amount, is said to be "arguable." To my mind, their action in this respect is not questionable from an ethical, moral or any other standpoint. They were entitled legally to the additional sum but they realized that if it were paid them each month it would mean that the appropriation would be exhausted before the year expired and this would leave no funds with which to continue the work for the remainder of the year, in which event they would either be discharged or compelled, if they worked, to run the risk of the legislature's taking care of the amount due them at its next regular session. With this situation confronting them, there is no reason whatever why they should not have waited as long as the statute of *Page 25 limitations permitted to initiate proceedings to collect the increase.
And besides, this course rendered possible the doing of the work they were employed to perform and at the same time enabled them to live and receive for their labor the full amount the Minimum Wage Law intended them to have, provided, it is true, the lawmaking body should later decide that the state should live up to the principle the eleventh legislature established as the state's public policy when, by passing chapter 12, Session Laws of 1933, it amended section 1350, Revised Code of 1928, in such a way as to provide that all those performing manual or mechanical labor for the state or any of its political subdivisions should be paid at least the minimum per diem wages fixed by the highway commission for that class of work.
The fact that the legislature, in making the appropriation in March, 1937, for the care of the capitol building and grounds, may not have thought any change in the wage rate made by the highway commission would affect the wages of those employed for this work during the biennium which that appropriation covered is wholly immaterial. It had given that commission the power to fix the minimum per diem to be paid those performing manual or mechanical labor for the state or any of its political subdivisions and made the wages so fixed, whether an increase or decrease, binding upon the employer and immediately effective. This being true, it became the duty of the officer or officers controlling the employment to pay the new wage from the day it was fixed by the commission and of plaintiff and his assignors to work for no less, City of Glendale v. Dixon, 51 Ariz. 206,75 P.2d 683, but the officers did not do this because the appropriation was insufficient and the plaintiff and his assignors, though anxious to receive the increased amount, did not insist on its being paid them for the *Page 26 reason just stated and perhaps for the further reason that they were somewhat fearful that doing so might to some extent jeopardize their jobs. Under these circumstances it is, to my mind, unthinkable that the action of plaintiff and his assignors in seeking to recover the amount the law says they are entitled to should be characterized as "arguable," from an ethical, moral or any other standpoint. The fact that they accepted the lessor amount until the one-year limitation had almost run against the additional sum in order that the appropriation might not be exhausted before the end of the year and their continuance in their jobs rendered doubtful does not, as I see it, furnish any more ground for questioning their action, morally or ethically, than it does legally.