Martin v. Henderson

255 P.2d 416, 40 Cal. 2d 583, 1953 Cal. LEXIS 220

• Court: California Supreme Court
• Decided: April 3, 1953
• Docket: Sac. 6280
• Status: Published

Opinions

EDMONDS, J.

For a number of years, Andrew W. Martin was a traffic sergeant and George H. Redwine a traffic officer of the State Highway Patrol. They worked in excess of regular hours of duty without receiving equivalent time off. After the termination of their employment, Martin and Redwine'each filed a petition to compel the appropriate state official to approve his claim for overtime. The appeal is from a judgment requiring approval and payment of the claims.

The facts are undisputed. During the entire period of service, the monthly salary of each petitioner was fully paid. Martin worked about 500 hours in excess of his regular hours of duty, 100 of them being worked between February 6 and September 29, 1943. Redwine’s excess hours of duty totaled 332, all but 33 of them being served before February 6, 1943. Martin retired on April 30, 1947. Redwine’s separation from service was on March 16, 1947.

Headquarters General Order No. 295, issued by the chief of the highway patrol, effective October 1, 1939, provided: “Employees ordered to work beyond the hours ordinarily required or hours overtime in addition to what is considered their regular full day’s work, may be allowed time off on the day following or at some other convenient time in lieu of the overtime hours worked. Overtime hours shall be adjusted by the immediate superior of the employee affected and shall not become a part of the Headquarters’ record.”

Order No. 295 was canceled by Headquarters General Order No. 394 effective August 5, 1942. The new order read: “Employees ordered to work beyond the hours ordinarily required and considered as a full days work may be allowed compensating time off in lieu of such overtime worked. Such overtime hours may be granted and adjusted by the immediate superior of the employee affected and shall not become a part of the Headquarters record.”

On June 5, 1945, the chief of the highway patrol issued Information Bulletin No. 323, requiring that any claim for overtime hours accumulated prior to September 29, 1943, must be reported to the department in writing, accompanied by evidence in affidavit form supporting the claim. Failure to present a claim in the form outlined by June 30 would constitute a waiver of any claim for such overtime hours. Each of the petitioners complied with the requirements of this bulletin by timely filing a claim in the specified form.

Thereafter, on August 21, 1945, Headquarters Information Bulletin No. 329 was issued rejecting each and all of the claims presented pursuant to Bulletin No. 323. Following a list of reasons for the rejection of the claims, Bulletin No. 329 stated that “it is not believed that the State is privileged at this time either to grant compensating time off for overtime hours . . . worked prior to September 29, 1943, or to pay an employee the cash equivalent thereof on separation or otherwise. Accordingly, liability therefor is hereby denied and no such overtime credit will be recognized . . . and any and all overtime hours . . . accumulated or claimed to have been accumulated prior to September 29, 1943, are hereby cancelled. ’ ’

Rule 12 of the State Personnel Board, adopted June 17, 1938, with reference to the pay plan for the state civil service provided for pay schedules. Section 2(c) of the rule stated that: “The rates of pay set forth in the pay schedules, unless otherwise indicated in such schedules, represent the total compensation in every form.” It was also provided in section 2(h) that: “When the rate of pay is in terms of dollars a month no additional payment for overtime shall be made to any employee for services rendered by him in the same department, whether in the discharge of his ordinary duties or for any other duties which may be imposed upon him or which he may undertake or volunteer to discharge or perform.” On October 18, 1940, section 2(h) of rule 12 was amended to read: “When the rate of pay is in terms of dollars a months no additional payment for overtime shall be made to any employee for services rendered by him in the same classification in the same department.”

Effective February 6, 1943, section 150.5 was added to the State Civil Service Act (Stats. 1937, eh. 753) providing: “Upon a separation from service, without fault on his part, a person shall be entitled to a lump sum payment as of the time of separation . . . for any time off to which the person is entitled by reason of previous overtime work where compensating time off for overtime work is provided for by the appointing power or by the rules of the board. Such sums shall be computed by projecting the accumulated time on a calendar basis so that the lump sum will equal the amount to which the employee would have been paid had he taken the time off but not separated from the service.” (Stats. 1943, ch. 20, § 2, p. 336; now Gov. Code, § 18005.)

The petition of Redwine, filed March 11, 1948, asked that the respondent state officers be required to approve and pay his claim for overtime on the basis of the amount of salary he was receiving at the time he left the state service. By petition filed on April 21, 1948, Martin sought the same relief. The answer of the respondents denied that any amount was due for overtime. They alleged that any accumulated overtime hours had been canceled by departmental action and that the causes of action are barred by various statutory provisions.

Upon trial the superior court, by writ of mandate, directed that the respondents approve Martin’s claim in the amount of $872.95 and Redwine’s for $512.44, the respective cash values of the claimed overtime. The appeal is from that judgment.

In support of their appeal, the respondents contend that, insofar as hours worked prior to February 6, 1943, are eoncerned, Martin and Redwine were paid monthly salaries which, by statute, constituted compensation in full for all services which might be rendered by them. Prior to that date, they say, there was no statutory provision for overtime compensation and none could be allowed in the absence of statute. The respondents also argue that the claims are barred by the statute of limitations, regardless of whether the hours were worked prior or subsequent to February 6, 1943. Even if Martin and Redwine are entitled to a cash payment for overtime worked prior to February 6, 1943, the respondents say, the amount should be computed upon the basis of each officer’s salary as of the time the hours were worked, rather than as of the time of separation.

Martin and Redwine rely upon Howard v. Lampton, 87 Cal.App.2d 449 [197 P.2d 69], and Clark v. State Personnel Board, 56 Cal.App.2d 499 [133 P.2d 11]. These decisions were based, by analogy, upon Pohle v. Christian, 21 Cal.2d 83 [130 P.2d 417], in which it was held that a civil service employee, upon separation from service without fault on his part, is entitled to a cash payment for accumulated vacation time. The basis for the conclusion in the Pohle case was the statutory provision giving each officer and employee of the state a right to a vacation of specified duration. (Former Pol. Code, § 359c; cf. Gov. Code, § 18050.) In accordance with former section 359d of the Political Code (now Gov. Code, § 18052), the State Personnel Board had provided for payment upon separation for unused portions of vacation time. (State Personnel Board Rule 13, § 4.) The court held that, because the applicable sections of the Political Code “do not expressly or otherwise provide that an employee having the right to a vacation loses his right to compensation for that time upon being separated from the service” he is entitled to payment for unused vacation time. (P. 90.)

The Clark case followed the Pohle decision insofar as payment for accumulated vacation time was concerned. The court then held that, despite the absence of any statutory provision granting time off for overtime work and a rule of the Personnel Board specifically prohibiting payment for overtime, a state employee may be paid upon separation from service for accumulated overtime hours. It said: “We see no difference in principle between allowing an employee a cash payment for accrued vacation time upon his separation from the service, and allowing him, upon such separation, a cash payment in lieu of the compensatory time off to which he may have become entitled because of overtime worked.” The rule regarding payment for overtime hours expressed in the Clark case was applied to retired officers of the highway patrol in the Howard case, which involved a factual situation substantially similar to that here presented.

The basic fallacy in the Howard and Clark cases was the court’s assumption that, in the absence of any statutory provision, a civil service employee had a right to compensatory time off for overtime work. Those decisions are clearly distinguishable from the Pohle case, where the employee had a right granted by statute to a specified amount of vacation time.

Prior to February 6, 1943, the effective date of section 150.5 of the State Civil Service Act, supra, there was no statutory provision for overtime compensation. Section 1033 of the Political Code (now Gov. Code, § 18000) provided: “The salaries fixed by law for all state officers, elective or appointive, shall be compensation in full for all services rendered in any official capacity or employment whatsoever, during their terms of office, and no such officer shall receive for his own use any fee or perquisite for the performance of any official duty.” The same limitation was applied to civil service employees by the State Personnel Board (State Personnel Board Rule 12, § 2[c], supra) acting under its power to “establish and adjust salary ranges.” (Stats. 1937, ch. 753, § 70, p. 2094; now Gov. Code, § 18850.) Implementing this limitation, the board also specifically prohibited additional payment to any employee for overtime. (State Personnel Board Rule 12, § 2[h], supra.) Officers of the highway patrol are included within civil service (Const., art. XXIV, § 4[a]) and come within the definition of the word “employee” for the purposes of the State Civil Service Act. (Stats. 1937, ch. 753, § 8, p. 2086; now Gov. Code, § 18526.)

The statutory and regulatory limitations upon compensation for services are but a codification and application to civil servants of the oft-repeated rule “that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties-, even though the salary may be a very inadequate remuneration for the services, nor does it alter the case that by subsequent statutes or ordinances his duties are increased, and not his salary. His undertaking is to perform the duties of his office, whatever they may be, from time to time during Ins continuance in office for the compensation stipulated, whether these duties are diminished or increased; and whenever he considers the compensation inadequate he is at liberty to resign.” (Dougherty v. Austin, 94 Cal. 601, 629 [28 P. 834, 29 P. 1092, 16 L.R.A. 161] ; Buck v. City of Eureka, 109 Cal. 504, 517 [42 P. 243, 30 L.R.A. 409]; McAuliffe v. Kane, 54 Cal.App.2d 288, 296 [128 P.2d 932]; Vogel v. White, 134 Cal.App. 252, 254 [25 P.2d 233]; Kilroy v. Whitmore, 115 Cal.App. 43, 49 [300 P. 851].)

The rule applies not only to the duties themselves, as in the cases cited, but also to the hours of work. When the employee is paid by time, as by the day, week, or month, rather than by the amount of work which he does, he is bound, in the absence of statute, to render services without regard to the number of hours worked. (Robinson v. Dunn, 77 Cal. 473 [19 P. 878, 11 Am.St.Rep. 297].) Thus, in this case, Martin and Redwine, being paid by the month, could be required to work whatever number of hours each month was necessary for the performance of their duties. The situation is in no way analogous to that in the Pohle ease where the vacation was a matter of statutory right. The vacation was a period of time when no services could be required although compensation continued to be payable.

Obviously, efficient management and satisfactory employment relations require the state to fix reasonable work hours. In the absence of a statutory provision therefor, time off granted for work done in excess of those hours is not given as of right, but is allowed in accordance with the necessities of the duties to be performed. (Former Pol. Code, § 350; now Gov. Code, § 11152; cf. Stats. 1937, ch. 753, § 154, p. 2103; now Gov. Code, § 18705.) The fact that normal hours of work are established and compensating time off is provided for work beyond those hours does not, of itself, give the employee a right to payment for overtime.

“ The terms and conditions of civil service employment are fixed by statute and not by contract. (Citations.) ‘When an employee of the state, under civil service, accepts a position, he does so with knowledge of the fact that his salary, and, indeed, his conduct, are both subject to the law governing such matters, as set forth in the statute and the rules and regulations of the commission.’ (Citations.) The statutory provisions controlling the terms and conditions of civil service employment cannot be circumvented by purported contracts in conflict therewith. ’ ’ (Boren v. State Personnel Board, 37 Cal.2d 634, 641 [234 P.2d 981].)

The enactment of section 150.5 of the State Civil Service Act and the addition of sections 73 and 73.5 to the act, effective June 7, 1943 (Stats. 1943, ch. 1041, §§ 1-2, pp. 2976-2977; now Gov. Code, §§ 18020-18024), providing a comprehensive system of overtime computation and compensation, did not create a right to payment for overtime previously worked. The statutes were not, and could not be, retroactive. “The Legislature shall have no power to grant, . . . any extra compensation or allowance to any public officer, agent, servant, or contractor, after service has been rendered, . . . in whole or in part, nor to pay, or to authorized the payment of, any claim hereafter created against the State, . . . under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.” (Const., art. IV, § 32.) The services performed by Martin and Redwine prior to February 6, 1943, were such as' they were bound to render for their fixed monthly salaries. Under the prohibition of the Constitution, they could be granted no extra compensation for such services. (Robinson v. Dunn, supra, p. 475.)

Insofar as Howard v. Lampton, supra, and Clark v. State Personnel Board, supra, determine that a state officer or employee, in the absence of specific statutory authority, is entitled to a cash payment for accrued overtime upon separation from service, they are disapproved. Also disapproved is language in Howard v. Lampton, supra, pp. 457, 459, implying that section 18005 of the Government Code may be applied retroactively.

The respondents do not contend that payment could not be allowed for hours worked in excess of normal subsequent to February 6, 1943, the effective date of section 150.5. However, they argue that the claims of Martin and Redwine are barred in their entirety by the statute of limitations, regardless of whether the hours were worked prior or subsequent to that date. Because there was no right to payment for overtime worked prior to February 6, 1943, this contention will be considered only in relation to hours worked after that date.

Section 19630 of the Government Code, as here material, provides: “No action or proceeding shall be brought by any person having or claiming to have a cause of action or complaint or ground for issuance of any complaint or legal remedy for wrongs or grievances based on or related to any civil service law in this State or the administration thereof unless such action or proceeding is commenced and served within one year after such cause of action or complaint or ground for issuance of any writ or legal remedy first arose." This is the statute of limitations applicable to salary claims of employees or those who have been separated from service (Philbrick v. State Personnel Board, 53 Cal.App.2d 222, 230 [127 P.2d 634]) and controls the time for bringing any action upon a claim for overtime services. (Broyles v. State Personnel Board, 42 Cal.App.2d 303, 307 [108 P.2d 714].)

It is conceded that each of these proceedings was commenced within one year after the date of the petitioner’s separation from service. Relying upon Dillon v. Board of Pension Commrs., 18 Cal.2d 427 [116 P.2d 37, 136 A.L.R. 800], the respondents contend that the statute commenced to run upon August 21, 1945, when the department rejected all claims for accumulated overtime. Martin and Redwine argue that this contention was concluded by Howard v. Lampton, supra, pp. 456-457, which held that the statute did not start to run until the date of separation from service.

In the Dillon case, the question before the court was whether the period of limitation upon the right to claim a widow’s pension commenced to run at the death of the husband or was to be measured from the date each payment of the pension would have become due. Holding that the date of death was decisive, the court said: “A cause of action accrues when a suit may be maintained thereon, and the statute of limitations therefore begins to run at that time. (Citations.) The cause of action to establish the right to a pension accrued to plaintiff at the time of her husband’s death. At any time following the death she could demand a pension from the board and upon refusal could maintain a suit to enforce such action." (P. 430.)

No cause of action to compel the payment of overtime claims accrued to Martin and Redwine prior to their separation from service. Until that date, they might have been given compensating time off whenever their departmental superiors deemed it convenient to the service. The petitioners had no legal remedy to compel their superiors to give them time off at any specific time, or at all. Only in the event uncompensated overtime remained upon their separation from service did a right accrue to them to compel action by the department.

The respondents argue, however, that upon the department's denial of credits for accumulated overtime a cause of action accrued, “not to compel compensating time off or the cash equivalent of time off, but to establish status as a person having compensable overtime to his credit usable if, as and when compensating time off could be granted.” In essence, this position is that the petitioners had a cause of action to establish their right to compensation for overtime even if there was no remedy to enforce such right. Although no specific reference is made to it, the respondents apparently suggest that there might be an action for declaratory relief.

However, the availability of such an action would in no way affect the period of limitations commencing upon the department’s breach of its obligation to pay for accumulated overtime. As stated in Maguire v. Hibernia Sav. & L. Soc., 23 Cal.2d 719 [146 P.2d 673, 151 A.L.R. 1062], “the period of limitations applicable to ordinary actions at law and suits in equity should be applied in like manner to actions for declaratory relief. Thus, if declaratory relief is sought with reference to an obligation which has been breached and the right to commence an action for 1 coercive ’ relief upon the cause of action arising therefrom is barred by the statute, the right to declaratory relief is likewise barred. On the other hand, if declaratory relief is sought ‘before there has been a breach of the obligation in respect to which said declaration is sought,’ or within the statutory period after the breach, the right to such relief is not barred by lapse of time. (Citations.) There is no anomaly in the fact that a party may have a right to sue for declaratory relief without setting in motion the statute of limitations. Quiet title actions, forerunners of declaratory actions, may be maintained when an adverse claim to property is asserted, but the period of limitations does not commence to run at that date.” (P. 734.)

The amounts to which Martin and Redwine are entitled are to be computed by “projecting the accumulated time on a calendar basis so that the lump sum will equal the amount which [they] would have been paid had [they] taken the time off but not separated from the service. ’ ’ (Gov. Code, § 18005.) At the time of his separation from service, Martin’s salary amounted to $340 per month, or $1.70 per hour based upon a 48-hour week. Subsequent to February 6, 1943, he accumulated 100% overtime hours, or a sum equal to $170.85. Redwine’s salary at the time of his separation from service was $310 per month, or $1.54 per hour. For the 33 hours of accumulated overtime for which he legally may claim compensation, he is entitled to $50.82.

Insofar as the judgment directs the state officials to approve the petitioners’ claims in excess of these enumerated amounts, the judgment is reversed. In all other respects, it is affirmed, each party to pay his own costs on appeal.

Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.