City of Fort Smith v. Brewer

• Decision Date: 24 December 1973
• Docket Number: No. 73--179,73--179
• Parties: CITY OF FORT SMITH, Arkansas, Appellant, v. Odell BREWER et al., Appellees.
• Court: Arkansas Supreme Court

Page 643

502 S.W.2d 643

255 Ark. 813

CITY OF FORT SMITH, Arkansas, Appellant, v. Odell BREWER et al., Appellees.

No. 73--179.

Supreme Court of Arkansas.

Dec. 24, 1973.

Daily, West, Core & Coffman, Ft. Smith, for appellant.

Pearce, Robinson & McCord, Ft. Smith, for appellees.

FOGLEMAN, Justice.

This appeal involves questions about the amount of holiday pay to which firemen in the City of Fort Smith are entitled, and the terms on which it is to be paid. It requires a construction of Act 132 of 1955, as amended by Act 264 of 1957, now appearing as Ark.Stat.Ann. §§ 19--2108 and 19--2109 (Repl.1968). The action was instituted by appellees Brewer, Browder and Corbin, as a class action on behalf of all firemen of the city. They sought to recover pay for the holidays specified by the statute in lieu of additional days of vacation theretofore granted. They based their action upon an election of the firemen evidenced by a letter to the city's board of directors, dated April 23, 1971, signed by 86 members of the fire department. On June 21, 1971, the city passed its ordinance, No. 2896, effective July 1, 1971, honoring the election. This ordinance provided for 'holiday pay' by adding one day of pay to every other biweekly pay period, beginning July 1, 1971. Since there are 26 such payroll periods, this would result in payment for 13 holidays. After this ordinance was passed, appellees amended their complaint to challenge it on the method of calculation of a 'day's pay' utilized and the allowance of only seven days of benefits in the year 1971. Appellees contended that their work shift required that they be paid holiday pay on the basis of their pay for a 24-hour work shift and that they should be paid for 13 rather than seven holidays during 1971.

The matter was submitted to the circuit court upon a stipulation of facts. The following additional facts, among others, were stipulated:

1. Prior to 1971, the Fort Smith firemen accepted 13 consecutive days of paid vacation in lieu of holiday equalization pay.

2. All firemen receive a vacation of 15 days each calendar year with pay.

3. Those firemen who accepted a holiday vacation of 13 consecutive days prior to July 1, 1971, have no claim in the calendar year 1971 to equalization pay. Others received no vacation time for holiday equalization.

4. An ordinary day's work for a fireman is a 24-hour period beginning at 6:30 a.m. on one day and ending at 6:30 a.m. on the next, after which the fireman is off active duty, although subject to call, for a 48-hour period between each work period.

5. The city has paid firemen on a biweekly basis, since 1967. During a biweekly pay period, a fireman will average working 4 2/3 work periods of 24 hours each and average 56 hours active duty per week or 112 hours per biweekly pay period.

6. In calculating holiday equalization pay under Ordinance No. 2896, and for all budgetary purposes, except for computation of overtime, the city divides the biweekly salary of each grade and range of firemen by 10 as the city had done for payment of non-uniformed employees and for unused vacation and sick leave time for policemen.

7. Overtime is paid to firemen on an hourly basis determined by dividing biweekly salary by 112. ¹

8. Since 1971 was not a biennial election year, the three election days listed as holidays in the statutes were not observed in 1971, and the city contends that the firemen were entitled to pay for only 10 holidays in 1971 and other odd-numbered years.

The city administrator testified that those firemen who did not receive the full 13 days of additional paid vacation in 1971, would receive seven days of holiday equalization pay, and the city had offered those firemen three days' vacation in addition to the seven days' holiday pay. He also stated that non-uniformed employees worked 80 hours during a payroll period and policemen averaged 40 hours work per week. It was his understanding that firemen could not the leave the city during the 48 hours they were subject to call without calling and obtaining permission.

The trial court entered judgment, finding that: the proper method of calculating each day of holiday equalization benefit is to divide the biweekly salary by 4 2/3; Ark.Stat.Ann. §§ 19--2108 and 19--2109 provide for 13 days of holiday equalization benefits in each calendar year; the firemen are entitled to receive holiday equalization pay for the period of time prior to the effective date of their election in the form of pay and the city may not provide such benefits in the form of days of vacation.

We disagree with the circuit judge's conclusions. At the outset, we should say we also disagree with appellees' contention that these are findings of fact. The facts were undisputed, and the only questions involved turned upon interpretation of Acts 132 of 1955, as amended by Act 264 of 1957, appearing as Ark.Stat.Ann. §§ 19--2108, 19--2109.

Appellant's first point for reversal is that the circuit court's holding is erroneous, because it provides appellees with three days' pay for each day of holiday benefit. It argues that the city's method of payment is in keeping with the intent of the act. We agree with this contention. In order that our interpretation of the act be better understood, we set out the act as it appears in Arkansas Statutes Annotated, Volume 2B, with that portion added by the 1957 amendment italicized:

From and after the passage of this Act all firemen shall be paid for the thirteen (13) Arkansas legal holidays as set forth in Sec. 69--101 and 69--104 of the Arkansas Statutes. Firemen shall also be paid for any additional holidays which may hereafter be declared by legislative act. (Acts 1955, No. 132, § 1, p. 317.) Said equalization pay shall be based on each man's daily rate of pay and in addition to the regular pay schedule. This equalization pay for the thirteen (13) holidays shall be pro-rated and paid during the regular payroll periods; except that in lieu of said pay, firemen in said cities and towns may accept paid vacations not to exceed thirteen (13) days in any one (1) year. Said paid vacations to be in addition to any vacation time to which said firemen may now be entitled under city ordinance or departmental rules or departmental policy. (Acts 1955, No. 132, § 2, p. 317; 1957, No. 264, § 1, p. 808.)

We have previously held that the legislative intention of a similar act affecting policemen was that policemen be paid additional compensation for all legal state holidays regardless of whether they actually worked on each of them. Deason v. City of Rogers, 247 Ark. 1061, 449 S.W.2d 410. The overriding purpose of the act was expressed in the key words 'equalization pay.' If it could be said that the language of the body of the 1955 Act does not clearly express the General Assembly's intention that firemen be paid for holidays they might or might not receive, in order that they stand upon the same footing as most city employees who do not work on these holidays, but are paid, nevertheless, all doubt may be resolved by the title and emergency clause of the act, to which we resort in such cases. Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570; Rouse v. Weston, 243 Ark. 396, 420 S.W.2d 83; Roscoe v. Water & Sewer Improvement District No. 1, 216 Ark. 109, 224 S.W.2d 356; Sager v. Hibbard, 203 Ark. 672, 158 S.W.2d 922; Hollis v. McCarroll, 200 Ark. 523, 140 S.W.2d 420; Taylor v. J. A. Riggs Tractor Co., 197 Ark. 383, 122 S.W.2d 608. The title reads:

AN ACT Providing Equalization Pay for Firemen for the Thirteen Legal Holidays During Each Calendar Year Based On Their Daily Rate of Pay and in Addition to Their Regular Pay Schedule. Declaring an Emergency and for Other Purposes.

The emergency declared was based upon this statement in Sec. 4 of the Act:

It is necessary and essential for firemen to work on legal holidays for the protection of the public peace and safety, and adequate fire forces must be maintained at all times. On holidays firemen are denied the free vacation and leisure time enjoyed by other employees and that such equalization pay is needed by the firemen to give them more equitable and adequate support for their services and for the support of their families, and to maintain their present high standard of morale and efficiency.

If any lingering doubt be left, it was completely resolved by the 1957 amendment which permitted the firemen to accept paid vacations not to exceed 13 days in any one year in lieu of 'equalization pay.' Clearly, acceptance of the paid vacation time would guarantee that every fireman would receive as much time off work for holidays, without loss of pay, as other city employees. It would be rather odd to suggest, as appellees do, that the legislature somehow expected to equalize the position of the firemen of Fort Smith by giving them a 'daily rate of pay' which resulted in their being virtually three times as well provided for in this respect as other city employees, or that the firemen of any city whose working periods for firemen are arranged as those in Fort Smith should be so much better provided for than those in cities where work shifts may be on a 12-or eight-hour basis. It also seems most illogical to ascribe to the General Assembly an intention that the firemen in any city, by merely accepting vacation with pay, would receive approximately one-third as much as they would receive if they took the benefit in the form of 'equalization pay.' We can only assume that the legislative branch meant to 'equalize' so far as possible. Even though it is not for us to pass upon the logic or wisdom of a clearly expressed legislative intention, we should never construe an act, which does not state the intention in clear and unambiguous terms, to reach an illogical result, when it can be construed to reach a logical one. Warfield v. Chotard, 202 Ark. 837, 153 S.W.2d 168; Ledbetter v. Hall, 191 Ark. 791, 87 S.W.2d 996; LaFargue v. Waggoner, 189 Ark. 757, 75 S.W.2d...