This is an action by seven former North Little Rock policemen to recover up to a maximum of 30 days of accumulated sick-leave pay that is assertedly due to each of them. The plaintiffs also seek to maintain the suit as a class action for the benefit of other former policemen. The city defends primarily on the ground that the original ordinance allowing the payment of accumulated sick leave upon the termination of employment was amended in 1976 to exclude employees with less than ten years of service. None of the plaintiffs meet that minimum requirement.
After a hearing the trial judge ruled that the 1976 amendment did not apply to members of the fire and police departments; so the plaintiffs were entitled to recover. The city appeals from the ensuing money judgments for accumulated sick leave up to 30 days. The plaintiffs cross appeal from the court’s refusal to approve a class action. Our jurisdiction is based on Rule 29 (1) (c).
We disagree with the trial judge’s interpretation of the city ordinances. The original ordinance was codified as Sections 2-206 and 2-207. Section 2-206 provided that sick leave would accrue monthly and could be accumulated for not more than a total of 30 days. Section 2-207 provided that a city employee would be paid all his accumulated sick leave upon retirement.
In 1974 both sections were amended by Ordinance 4322. Section 1 of that ordinance amended 2-206 “to read as follows,” with the substituted language increasing the permissible accumulation to a maximum of 60 days, but excepting members of the fire and police departments from the effect of “this amendment.” Section 2 then amended 2-207 “to read as follows,” and provided that employees with less than 10 years of service would be paid accumulated sick leave to a maximum of 30 days at their retirement or resignation, but employees with 10 years of service or more would be paid up to their maximum accumulation of 60 days. In 1976 Ordinance 4710, relied on by the city, amended Section 2 of Ordinance 4322 to provide that employees with less than 10 years of service would not be entitled to the payment of any accrued sick leave upon termination of their employment.
We cannot agree with the trial judge’s conclusion that the exemption of the fire and police departments contained in Section 1 of the 1974 ordinance also applied to Section 2 of that ordinance. Section 1 was directed only to 2-206 and referred to “this” amendment, not these amendments. Section 1 had no effect upon 2-207, which was simultaneously but separately amended by Section 2, with no similar exemption of the fire and police departments. Hence the city’s apparent intention was to permit firemen and policemen to accumulate up to 30 days of sick leave under the first two ordinances, payable upon retirement. But the 1976 amendment purported to withdraw the right to any payment of accumulated sick leave until the employee had served for at least ten years. If that amendment is retroactively valid, the city’s position must be sustained.
The appellees argue that they had a vested contractual right to their accumulated sick leave because they “contributed” to the plan, not in money but by coming to work when they might have stayed away and charged their absence to sick leave. We do not find this argument persuasive. The ordinary meaning of the words “sick leave” contemplates an illness rather than an optional holiday with full pay.
Alternatively the appellees argue that they had a vested contractual right to their accumulated sick leave, because it was held out to them as a fringe benefit at the time of their employment. There is a division of authority about the recognition of a vested right to the continuation of sick leave or similar benefits which arise from a statute or ordinance rather than from an express contract incorporating such benefits. The cases holding that there is no vested right include: Marsille v. City of Santa Ana, 64 Cal. App. 3d 764, 134 Cal. Rptr. 743 (1977) (sick leave); Brown v. City of Highland Park, 320 Mich. 108, 30 N.W. 2d 798 (1948) (pension); Halek v. City of St. Paul, 35 N.W. 2d 705 (Minn. 1949) (sick leave); Lickert v. City of Omaha, 12 N.W. 2d 644 (Neb. 1944) (pension); Dodge v. Board of Education, 302 U.S. 74 (1937), holding that there is a presumption that the law is not intended to create vested rights, but the question is essentially one of legislative intent. Other cases hold that the statute or ordinance becomes part of the contract of employment and creates a vested right. Yeazell v. Copins, 402 P. 2d 541 (Ariz. 1965) (pension); Vangilder v. City of Jackson, 492 S.W. 2d 15 (Mo. App. 1973) (sick leave); Harryman v. Rosenburg Rural Fire Protection Dist., 420 P. 2d 51 (Ore. 1966) (sick leave); City of Galveston v. Landrum, 533 S.W. 2d 394 (Tex. Civ. App. 1976) (sick leave); Mulholland v. City of Tacoma, 83 Wash. 2d 782, 522 P. 2d 1157 (1974) (pension).
We think the better view is that an employee’s right to accumulated sick leave in a case such as this one continues to vest as long as a particular plan is in force, but the city may prospectively modify the plan if that course is found to be advisable. Hence, although we disagree with the trial court’s conclusion about the effect of Ordinance 4710, we remand the cause for a determination of the amount of accumulated sick leave, up to a maximum of 30 days, that had accrued to each claimant on the effective date of that ordinance and that was not thereafter diminished or exhausted. In the case of employees such as these, who did not ultimately complete 10 years of service, there could be no additional accumulation after Ordinance 4710 went into effect.
As to the cross appeal, a class suit is permitted when, in addition to other requirements, the parties are numerous and it is impracticable to bring them all before the court within a reasonable time. ARCP, Rule 23 (a). Here the members of the class are all identified and total only seventeen, including the seven appellees. The appellees cite no authority permitting a class action for such a small group, and we doubt if such a case exists. Moore’s Federal Practice, § 23.05 [1] (1980); Wright and Miller, Federal Practice and Procedure: Civil, § 1762 (1972). In the present case there is no showing of impracticability.
Reversed on direct appeal and remanded; affirmed on cross appeal.
Purtle, J., dissents.