Rehearing Denied May 31, 1949.
Appeal from Superior Court, Maricopa County; Thomas J. Croaff, Judge.
Jack Choisser, City Atty., and Howard W. Gibbons, Asst. City Atty., both of Phoenix, for appellant.
Laney & Laney, of Phoenix, for appellee.
De Concini, Justice. Udall, Stanford, and Phelps, JJ., concur. La Prade, C. J., not participating.
De Concini, Justice.
[69 Ariz. 69] Eighty-six employees, including one assistant chief, one deputy chief, five alarm operators, 24 captains, 21 engineers, and 34 hosemen, of the Fire Department of the City of Phoenix filed suit against the latter for overtime or additional compensation for the year May 1, 1944, to April [69 Ariz. 70] 30, 1945, both inclusive. Each employee had received a certain monthly salary from the defendant, depending upon his classification under the Civil Service System of the City of Phoenix. Each was required to work what was called the "double platoon" system, consisting of 24 hours on duty and 24 hours off duty. In addition, because of the status of war and consequent man-power shortage, each employee worked certain extra shifts of 12 hours each, called "Victory" shifts, for which each employee was paid a proportionate additional amount to his salary. The firemen in their complaints alleged that each was entitled to extra pay on the basis of eight hours constituting a day's work, plus overtime pay for each hour in excess of eight hours a day. The rate of payment for the overtime was asked alternatively (1) at time and one-half on excess of regular monthly work over eight hours per day and on the whole of the Victory shifts; (2) at time and one-half on excess of regular monthly work over eight hours per day and on excess of Victory shifts over eight hours per day; (3) at straight time for all time over eight hours per day on both monthly work and Victory shifts; or (4) according to minimum monthly wage of $ 180 per month, plus straight time at same rate for time over eight hours per day.
The firemen based their claims on Art. 18, Sec. 1 of the Arizona Constitution as implemented by Sec. 56-101, A.C.A.1939, which provides that:
"Eight (8) hours, and no more, shall constitute a lawful day's work for any person doing manual or mechanical labor, employed by or on behalf of the state or any political subdivision thereof, except in an extraordinary emergency, in time of war, or for the protection of property or human life, in which case every person working in excess of eight (8) hours in any day shall be paid time and one-half for all time in excess of eight (8) hours."
By an amendment to their complaint on the date of the trial plaintiffs added Sec. 5 of Chapter XIX of the Charter of the City of Phoenix.
The case was heard by the court sitting without a jury. The record recites that evidence was taken and witnesses heard, but no transcript of the evidence was sent up to this court.
The court gave judgment for the plaintiffs, allowing recovery according to alternative (3) above, finding that the firemen were governed by the provisions of the city charter. It found that each of the plaintiffs, with the exception of the alarm operators, had worked the number of hours per day and the number of shifts as alleged in their amended complaints. It was further found that the excess of work above eight hours per day was due to an emergency within the meaning of the charter provision, and that the plaintiffs had not received payment for this overtime, but had been paid only one day's pay for ...