McGuire v. City of Dallas

• Citation: 170 S.W.2d 722
• Decision Date: 21 April 1943
• Docket Number: No. 1924 - 7983.,1924 - 7983.
• Parties: McGUIRE v. CITY OF DALLAS et al.
• Court: Supreme Court of Texas

170 S.W.2d 722

McGUIRE v. CITY OF DALLAS et al.

No. 1924 - 7983.

Commission of Appeals of Texas, Section B.

April 21, 1943.

Rehearing Denied May 19, 1943.

Error to Eighth Supreme Judicial District.

Action by L. L. McGuire against the City of Dallas and others for wages due plaintiff as a city fireman. To review a judgment of the Court of Civil Appeals, 159 S.W.2d 958, reversing a district court judgment for plaintiff, and rendering judgment for city, plaintiff brings error.

Judgment of Court of Civil Appeals reversed and judgment of District Court reformed and affirmed.

L. L. McGuire, of Dallas, pro se.

Fay W. Prescott, of Ft. Worth, amicus curiae.

H. P. Kucera, City Atty., Chas. E. Long, Jr., Asst. City Atty., R. L. Dillard, Jr., Asst. City Atty., and A. J. Thuss, Asst. City Atty., all of Dallas, for appellees.

SLATTON, Judge.

This suit is for overtime and minimum wages said to be due under Article 1583, Vernon's Annotated Penal Code, to a fireman in and for the City of Dallas, said city having a population of more than 75,000 inhabitants. L. L. McGuire was working for the City of Dallas as a fireman on the effective date of said amended act, c. 173 (April 19, 1937) and continued his services in the same capacity until July 16, 1939. The trial court rendered judgment for McGuire for the sum of $356.71. The city and McGuire were dissatisfied with the judgment. The city appealed and McGuire cross assigned error. The Dallas Court of Civil Appeals, on October 17, 1941, rendered a judgment in favor of McGuire for the sum of $1,037.88, with interest from March 19, 1940. On rehearing the opinion was withdrawn and judgment was rendered against McGuire on January 23, 1942. 159 S.W.2d 958. McGuire prosecuted a writ of error to this court. Sections 6 and 7 of Article 1583, Vernon's Annotated Penal Code as amended, provides:

"6. It shall be unlawful for any city of more than seventy-five thousand (75,000) inhabitants to require or permit any such firemen and policemen to work more than twelve (12) hours per calendar day or more than seventy-two (72) hours in any one calendar week and, in no event, more than one hundred forty-four (144) hours in any two (2) consecutive calendar weeks in the discharge of their duties except in case of emergency which may arise where it may become necessary to work more than twelve (12) hours per calendar day or more than seventy-two (72) hours in any one calendar week or more than one hundred forty-four (144) hours in any two (2) consecutive calendar weeks for the protection of property or human life; said firemen and policemen shall draw additional compensation for the number of hours worked in addition to the regular twelve (12) hour calendar day, or more than the regular seventy-two (72) hours in any one calendar week or more than the regular one hundred forty-four (144) hours in any two (2) consecutive calendar weeks or if required to work on any day which has been designated as the day of the week that such member of said department should not be required to be on duty, additional compensation at the rate of time and one-half overtime computed upon the basis of their monthly salary shall be paid to them for such additional time as they are required to work.

"7. It is further provided that in any city of more than seventy-five thousand (75,000) inhabitants that each member of any such department shall receive a sum of One Hundred Fifty ($150.00) Dollars per month as a minimum wage for said services so rendered."

The city attacks the quoted statute, particularly Section 7, thereof, on constitutional grounds. This court settled that question by the refusal of the writ of error in the case of Dry v. Davidson, Tex.Civ. App., 115 S.W.2d 689, writ refused.

The major portion of the overtime sued for in this action arose in virtue of McGuire being required to serve as a fireman on the night shift during the first half of each month, during which time he was required to work 14 hours per day. This shift was designated in the record as the "B" shift and the other shift known as "A" shift, during which time he was required to work 10 hours per day. Thus McGuire was required over a semi-monthly period to work more than 12 hours per day, or 72 hours per week, or more than 144 hours in two consecutive weeks. McGuire worked from May, 1937, through March, 1939, 98 hours each week while on the semi-monthly "B" shift and the overtime involved is 26 hours per week or 52 overtime hours for each of the 23 months. McGuire worked from April, 1939, to his discharge 12 hours per day, 7 days per week, or 24 hours overtime for two weeks on a monthly basis. In addition, McGuire was required to make inspections (four hours bi-monthly) amounting to 52 hours or a total overtime of 1,360 hours.

The city contends that a fireman cannot recover for overtime work which was performed in violation of Article 1583. The statute under which McGuire claims overtime and minimum wage pay does not prohibit overtime work but the "requirement or permitting" of it by the municipality. The act by its terms provides for "additional compensation for the number of hours worked in addition to the regular twelve (12) hour calendar day," etc., or "if required to work on any day which has been designated as the day of the week that such member of said department should not be required to be on duty, additional compensation at the rate of time and one-half overtime computed upon the basis of their monthly salary shall be paid to them for such additional time as they are required to work."

A careful consideration of the quoted sections of the statute leads to the conclusion that overtime work by a fireman is not in itself prohibited. The prohibition is to the "requirement or permitting" of overtime work. A fireman who performs overtime work either in an emergency or otherwise under requirement or permission by a municipality is entitled to additional compensation at the rate of time and one-half overtime computed upon the basis of their monthly salary, which in this case is the minimum of $150 per month. To hold otherwise would nullify the language quoted whereby additional compensation is allowed to firemen who are required or permitted to work more than the hours and days provided in the statute. The language shows beyond question that overtime work as such is not made illegal. A municipality is penalized for the requirement or permitting of overtime work either in emergencies or otherwise. The requirement or permission of overtime work is made an offense against the city official in charge of the fire department in all cases except in an emergency. The controlling question to be decided in construing this statute is one of legislative intent. The language used in the statute is the best evidence of what was intended. It is clear therefore that the legislature by the grant of additional compensation to those who were required or permitted to work overtime hours did not intend to render the prohibited overtime work void, but rather to prevent it. The statute does not undertake to penalize the fireman but penalizes the municipality by the exaction of time and one-half for overtime for the overtime hours required or permitted. The penal offense provided by the statute is applicable to "the city official having charge of the fire department * * *" and not to the municipality or fireman. This court, in the case of American National Insurance Company v. Tabor, 111 Tex. 155, 230 S.W. 397, 399, said:

"The statute does not denounce as void any policy which violates its terms. The expressly declared consequences of infractions of the statute appear to be ample to secure its obedient observance. The Supreme Court of the United States was of the opinion that, where this was true, it was the reasonable implication that the Legislature meant for only the statutory remedies to be applied, and did not mean for courts to refuse to enforce contracts which were not declared void or unenforceable, though in contravention of the statute. Harris v. Runnels, 12 How. 79, 13 L.Ed. 901.

"The language of the statute shows that the Legislature did not regard the insured and the insurer as in pari delicto in making the contracts sought to be prevented. The insurer and the insurer's agents are alone to be punished, and are alone expressly subjected to forfeiture. The command to refrain from the discriminatory acts is addressed to the insurance companies alone.

"We sanction the declaration of Judge Selden, quoted with approval in a later opinion of the New York Court of Appeals, that—`It is safe to assume that whenever the statute imposes a penalty upon one party, and none upon the other, they are not to be regarded as par delictum.'"

The City of Dallas relies upon the following authorities from other jurisdictions: Lewis v. Ferrari, 34 Cal.App.2d Supp. 767, 90 P.2d 384; City of Glendale v. Dixon, 51 Ariz. 86, 75 P.2d 42; Id., 51 Ariz. 206, 75 P.2d 683; Robinson v. City of Perry, 35 Okl. 475, 130 P. 276; Burns v. City of New York, 121 App.Div. 180, 105 N.Y.S. 605. These authorities construe wage and hour laws of the particular state involved and the statutes differ from the Texas statutes in this: (1) overtime is prohibited to employer and employee alike and the overtime is declared to be illegal; (2) overtime employment is limited to an emergency. These authorities are in line with the Lusk case, Montgomery Ward & Co. v. Lusk, Tex.Civ.App., 52 S.W.2d 1110 1111, writ refused. The holdings made in such cases are not applicable to the statute in review for the reasons above stated. The distinction to be made in these cases is clearly recognized by the use of the following language contained in the opinion of the court in the Lusk case, supra, as follows:

"Such statutory protection cannot be waived by a single member of society. To permit individuals to enter into contracts to violate the law and then invoke the aid of the courts to secure the...