Borderland Construction Co. v. State

• Decision Date: 24 May 1937
• Docket Number: Criminal 843
• Parties: BORDERLAND CONSTRUCTION COMPANY, a Corporation, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

68 P.2d 207

49 Ariz. 523

BORDERLAND CONSTRUCTION COMPANY, a Corporation, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 843

Supreme Court of Arizona

May 24, 1937

APPEAL from a judgment of the Superior Court of the County of Pima. William G. Hall, Judge. Judgment affirmed.

Messrs Darnell, Pattee & Robertson, for Appellant.

Mr. Joe Conway, Attorney General and Mr. J. B. Sumter, Assistant Attorney General (Mr. Howard Twitty, of Counsel), for Respondent.

OPINION

ROSS, J.

The Borderland Construction Company appeals from a judgment of conviction of violating the minimum wage law of the state. The charging part of the information reads:

"The said Borderland Construction Co., a corporation, on or about the 20th day of June, 1935, and before the filing of this information, at and in the County of Pima, State of Arizona did then and there and while being under contract with the Arizona State Highway Department of the State of Arizona for the construction of project Number NRS 110-A, known as the Tucson-Ajo Road Project, in the County of Pima, State of Arizona, wilfully and unlawfully pay to one Frank Robles, a person then and there being a blacksmith's assistant; and doing such work as a blacksmith's assistant and employed by said Borderland Construction Co., a corporation, the sum of Eighty ($80.00) Dollars for working thirty-two (32) days of five (5) hours each, between June 20th, 1935, to and including July 27th, 1935, when and while the minimum wage for such work and labor was, and had been theretofore, fixed by the State Highway Commission of the State of Arizona, according to law, at eighty-seven and one-half (87 1/2) cents per hour for each hour of a five (5) hour working day according to specifications as provided in said contract."

The questions raised by appellant involve the sufficiency of the facts in the information to state a crime under the minimum wage law and, if that be determined against appellant, the sufficiency of the evidence to sustain the conviction, and some of the court's rulings rejecting evidence offered by it.

The statute under which the information was drawn reads as follows:

"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 subcontractors 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." Section 1350, Ariz. Supplement 1936 (or section 1350, Rev. Code of 1928, as amended by chapter 12, Laws of 1933).

By its terms this statute is limited to persons doing labor on public works of the state and its political subdivisions. It does not undertake to regulate the hours or wages of labor generally and, if the facts set out in the information fail to show that Robles was working on a public works contract the appellant had with the state, it states no crime.

The appellant did not demur to the information, nor did it object to the introduction of evidence on behalf of the state on the ground that the information did not state a crime. Sections 5008 and 5014, Rev. Code 1928. The question of the sufficiency of the information was raised for the first time by a motion in arrest of judgment. This was perfectly proper (section 5099, Id.), for if an information does not allege a public offense advantage may be taken thereof at any time.

Appellant argues that to constitute the crime charged it must appear (1) that the Borderland Construction Company had a public works contract with the state; (2) that Robles was its employee; (3) that he was doing manual or mechanical labor in the execution of such contract with the state; and (4) that appellant paid Robles a rate of wages less than the minimum fixed by the State Highway Commission for the class of work he was doing.

It is argued that the third of the enumerated essentials of the offense is not set out in the information; that it is as reasonable to conclude that Robles was working on a private contract appellant had with a third person or concern as that he was working in the execution of a contract appellant had with the state. We think this might be as contended except for the statement in the information that "the minimum wage for such work and labor was, and had been theretofore, fixed by the State Highway Commission of the State of Arizona according to law." This allegation is a negation of the inference or conclusion that Robles was working on a private contract, because the law does not authorize the highway commission to fix the wages or hours of labor on such contracts. It also ties the work Robles was doing into the contract set out in the forepart of the information by referring 't' specifications as provided in said contract" for Robles hours of work and wages. It is of course necessary that an information charging a crime created by statute should be as broad in its facts as the statute, but if the facts set forth fairly apprise the accused of the charge preferred against him so that he can meet it, it should be sufficient especially in view of our constitutional provision against reversal for technical errors in pleadings or proceedings. Section 22, art. 6.

At the trial it was shown that the highway commission had classified and defined labor for the purposes of fixing wages and that such classification and schedule of wages were attached to and made a part of appellant's contract with the state. We quote:

"The following definitions shall govern with respect to the different classes of labor:

"Skilled labor;

"Skilled labor shall include the operators of complex heavy power equipment and skilled craftsmen of the journeyman grade whenever and wherever the nature of the work or the local labor agreements prevailing, require the use of craftsmen of this grade.

"Labor (intermediate grade);

"(a) The operators of all power equipment other than complex heavy power equipment, except passenger cars, trucks of 1-1/2 ton or less manufacturer's rates capacity, and tractors of less than 20 horsepower manufacturer's...