*1 Apr. No. 6280. Bank. [Sac. 1953.] MARTIN, ANDREW Respondent, W. A. H. HENDER SON, as Director Department Vehicles, of Motor etc., al., Appellants. et REDWINE, Respondent,
GEORGE H. A. H. HENDER SON, Department Vehicles, as Director of Motor etc., al., Appellants. et *3 N. Howser and Brown, Attorneys
Fred Edmund G. Gen- eral, Morse, Wilmer W. Deputy Attorney and General, for Appellants. Phillips H. Respondents.
James years, of a number Andrew W. EDMONDS, J. Mar- For George sergeant and H. Redwine a traffic tin was a traffic They Highway Patrol. worked the State excess officer of equivalent duty receiving hours of without time regular of employment, of their Martin and the termination off. After compel petition appropriate the filed a state Redwine'each appeal his claim for overtime. The approve official to requiring approval payment of judgment and the from a claims. During undisputed. period are entire of
The facts salary petitioner monthly fully of each service, paid. 500 regular about hours in excess of his worked hours Martin being February duty, 100 of them worked between 6 of 29, duty 1943. Redwine’s excess of September hours totaled being February served before 332, 6, all of them but 1943. 30, April on 1947. Redwine’s retired Martin 16, on March 1947. service was by Headquarters 295, No. the chief Order issued General 1, patrol, 1939, provided: highway effective October of the beyond ordinarily to work the hours “Employees ordered is considered required or overtime in addition to what hours day’s work, may off regular full be on allowed in lieu day following or at convenient time some other Overtime hours shall be ad- of the overtime hours worked. by superior employee of the affected justed immediate Headquarters’ part a record.” and shall not become Headquarters by Order Order No. was canceled General August 5, 1942. The order read: “Em- No. 394 effective new required beyond ordinarily ployees ordered work the hours days may allowed com- and considered as a full work be Such off in lieu of overtime worked. pensating time adjusted by the immedi- granted be overtime hours of the affected and shall not become superior ate part Headquarters record.” of the highway patrol 5, 1945, the chief of the issued On June 323, requiring Bulletin No. claim for Information prior September 29, 1943, overtime hours accumulated accompanied department writing, reported to the must supporting affidavit form claim. Failure evidence in form present claim in the outlined June would claim for such overtime hours. constitute a waiver complied requirements petitioners with the Each timely filing specified form. claim in this bulletin August 1945, Headquarters Thereafter, 21, on Information rejecting each and Bulletin No. 329 was issued all Following No. 323. Bulletin presented pursuant claims Bulletin rejection claims, No. of reasons for list privileged “it is not believed that the State 329 stated that grant compensating time off for over- either to at this time September prior or to time hours . . . worked *4 equivalent separation thereof on pay employee the cash an liability hereby Accordingly, therefor is denied or otherwise. recognized any will . . . credit be and overtime and or hours . . . accumulated claimed to have overtime and all 29, 1943, hereby prior September are been accumulated ’’ cancelled. Board, adopted 17, State Personnel June Rule 12 of the pay for plan to the the state civil service 1938, with reference pay 2(c) Section the rule stated for schedules. provided schedules, un- pay pay forth in that: “The rates of set represent total schedules, in such less otherwise indicated in provided sec- It was also every in form.” compensation in terms of dol- pay is 2(h) tion that: the rate of “When overtime shall be payment for lars a month no additional by him in the any rendered employee made to for services ordinary discharge of his department, same whether in the may imposed upon any or for which duties other duties discharge him volunteer to or he undertake or which 2(h) perform.” 18, 1940, or of rule section On October pay is in terms was amended to the rate of read: “When payment for overtime shall dollars months no additional any by employee be made to him for services rendered department.” the same classification the same 1943, February 6, Effective 150.5 section was added (Stats. the State 1937, 753) providing: Civil Service Act eh. “Upon separation service, part, without fault on his person lump shall be sum as of the entitled to any person time of . . . for time off to which the by previous entitled reason of overtime work where com pensating provided by time off for overtime work appointing power the rules of the board. Such sums computed shall be by projecting the accumulated on a calendar lump equal basis so that the sum will amount paid which the have been had he would taken the time off separated (Stats. but not from the service.” 1943, 20, § 2, p. 336; ch. Code, 18005.) now Gov. petition
The Redwine, 11, 1948, filed March asked that respondent required state approve pay officers be his claim for overtime on salary the basis of the amount he receiving was at By the time he left the state service. petition on April 21, 1948, filed sought Martin the same relief. The respondents answer of the denied that amount They due for overtime. alleged accumulated overtime hours departmental had been canceled action and that the causes of action statutory are various barred provisions.
Upon superior court, by mandate, trial the writ of directed respondents that the approve Martin’s claim the amount of $872.95 $512.44, respective Redwine’s cash values of the appeal claimed overtime. is from judgment. support of their appeal, respondents that, contend insofar February hours prior worked are eon- *5 588
cerned, monthly paid Martin and were salaries Redwine which, by statute, compensation constituted in full for all might services them. which be rendered Prior to that they date, statutory say, provision there was no for overtime compensation and none could be in the allowed absence respondents argue statute. The also claims are regardless barred the statute of limitations, of whether subsequent hours prior February 6, were worked or 1943. Even if Martin and Redwine are entitled to a cash payment prior for February 6, 1943, overtime worked respondents say, computed upon the amount should be salary the basis of each officer’s as of the time the hours were worked, than separation. rather as of the time of rely upon Lampton,
Martin and Redwine Howard v. 87 Cal.App.2d 69], 449 P.2d and Clark State Personnel [197 Board, Cal.App.2d 56 P.2d These decisions [133 11]. by analogy, based, upon Christian, were Pohle Cal.2d 417], it which was held that a civil service upon separation from employee, without service fault on his part, payment to a cash entitled for accumulated vacation The for time. basis the conclusion in the Pohle case was statutory provision giving employee each officer and of the right specified state a a vacation of (Former duration. Code, 359c; Pol. Code, 18050.) Gov. In accordance § § cf. former with section 359d of the (now Political Code Gov. 18052), provided State Personnel Board had for § payment upon separation portions for unused vacation (State time. 4.) Personnel Board Rule The court that, applicable held because the sections of the Political Code expressly “do not provide otherwise employee that an having the right to a compensa vacation loses his tion for upon being separated that time from the service” payment he is entitled to (P. for unused 90.) vacation time. Pohle decision pay- case followed the insofar as The Clark vacation time was for accumulated concerned. ment that, despite any statutory the absence of then held court for granting time off overtime work provision rule specifically prohibiting Board payment Personnel may overtime, employee paid upon separation a state from overtime hours. It said: for accumulated “We service see allowing principle between an difference payment accrued vacation time his cash service, allowing him, upon separation, compensatory in lieu of the time off to which cash he have of overtime worked.” become entitled because regarding payment expressed in The rule for overtime hours applied case highway Clark officers of the to retired patrol case, in the situation Howard which involved a factual *6 substantially presented. to that here similar fallacy
The basic in the Clark was the Howard and cases statutory assumption any that, court’s in the of absence provision, compensa- a civil employee service had to tory clearly time off for overtime work. Those are decisions distinguishable case, employee from the Pohle where the right granted by specified statute to a of vacation amount time. February 6, 1943,
Prior to the effective of date section 150.5 Act, supra, of the State Civil there Service was no provision statutory compensation. for overtime Section 1033 (now of 18000) provided: the Political Gov. Code § by officers, “The for all salaries fixed law state or elective appointive, compensation shall be full for all services ren any capacity dered in employment whatsoever, official or dur ing office, their terms no such of and officer shall for receive any his use fee perquisite performance own or duty.” official The same applied limitation was civil to employees by (State service the State Personnel Board Per 12, sonnel Board 2 [c], supra) acting Rule power under its § adjust salary ranges.” “establish and (Stats. 1937, ch. § 70, p. 753, 2094; Code, 18850.) now Gov. Implementing § limitation, specifically this the board prohibited also addi employee tional (State for overtime. Per 12, sonnel Board Rule 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” purposes for the of the State Civil Service Act. (Stats. 1937, 753, 8, p. 2086; ch. Code, 18526.) now Gov. § statutory The regulatory limitations com pensation for services are but a application codification and oft-repeated person civil servants of the rule “that a ac public cepting salary office awith fixed per is bound to salary. form the duties of officefor the legally He cannot compensation claim discharge additional of these though duties-, salary may even be very inadequate services, for the remuneration nor it does alter case subsequent by statutes or his increased, ordinances duties are salary. his undertaking perform not His is to the duties office, they be, of his during whatever from time to time 590 stipulated, compensation for the office
Ins continuance increased; and or when these duties are diminished whether inadequate is compensation he at lib considers the ever he Austin, 601, 629 resign.” (Dougherty v. 94 erty Cal. [28 City 1092, ; Eureka, Buck 834, 29 P. 16 L.R.A. v. P. 161] 243, 409]; v. 504, 517 P. 30 L.R.A. 109 Cal. [42 McAuliffe Vogel 932]; v. Cal.App.2d 288, 296 P.2d Kane, 54 [128 Kilroy 254 White, Cal.App. 233]; 134 Whit [25 Cal.App. 851].) P. more, 49 [300 only applies themselves, rule not as the duties cited, When the in the cases also to the hours of work. but paid week, month, by time, day, does, work he rather than the amount of which he statute, bound, in the services without absence render (Robinson Dunn, regard to the number of hours worked. 878, Am.St.Rep. 297].) Thus, P. in this Cal. paid month, case, Redwine, being Martin and could required to work number hours each month whatever necessary performance for the duties. The sit way analogous in no to that Pohle ease uation is in the where *7 statutory right. a matter of The the vacation was vacation required period of time when no services be al could compensation though payable. continued to be Obviously, management satisfactory efficient employ and require ment relations the state to fix reasonable work hours. statutory therefor, In the provision absence of a granted off for work done excess of those hours not is right, given as but is allowed in accordance with the performed. (Former necessities of the duties to be Code, Pol. 350; Code, 11152; 753, now 1937, 154, Gov. Stats. ch. § § § cf. p. Code, 18705.) 2103; now Gov. The fact that normal hours established compensating of work are and time off pro beyond work not, vided for those hours itself, give does right payment employee for overtime. “ employ- civil service and conditions of The terms (Citations.) not contract. fixed are statute ment service, accepts state, under civil ‘When an knowledge the fact that his he does so with position, conduct, subject are to the law and, indeed, his both salary, matters, set forth in the statute and governing (Citations.) regulations the commission.’ rules and statutory controlling the terms and con provisions The employment cannot be circumvented civil service ditions of ’’ v. (Boren State therewith. in conflict by purported contracts 981].) 634, 641 Board, 37 Cal.2d Personnel 150.5 of the Civil section State enactment of The to the 73 and 73.5 of sections and the addition Act Service 1041, 1-2, pp. (Stats. 1943, ch. 7, 1943 act, §§ effective June 18020-18024), providing a com 2976-2977; now Gov. §§ compensation, computation and prehensive system of overtime previously for overtime payment not create a did be, not retroactive. not, and could statutes were worked. The any . grant, . . power Legislature shall have “The officer, public agent, compensation or allowance to extra rendered, . . . contractor, has been servant, after service pay, payment authorized part, or in nor to or to whole State, . . of, any against the . under claim hereafter created authority express made without agreement or contract agreements or contracts such unauthorized law; and all § 32.) (Const., IV, art. The null and void.” shall be February prior Martin performed and Redwine services they such as' were bound to render were monthly prohibition of the fixed salaries. Under the Con stitution, they granted compensation no extra could be (Robinson Dunn, supra, p. 475.) such services. v. Lampton, supra, Howard v.
Insofar as Clark State Board, supra, Personnel determine a state officer or em ployee, statutory specific authority, in the absence of is en payment separa titled to cash for accrued overtime they service, disap disapproved. tion are Also proved language Lampton, supra, pp. 457, 459, Howard implying that section 18005 of the Government Code retroactively. applied respondents do not contend could not subsequent for hours worked in excess of normal be allowed 6, 1943, February the effective date of section 150.5. How- they Martin are ever, argue that the claims of and Redwine entirety by limitations, regard- in their the statute of barred *8 prior subsequent whether the hours were worked or less of right payment for to that date. Because there was no to February prior 6, 1943, this contention overtime worked to only will be considered hours worked after relation to that date.
Section 19630 of the as here ma Government terial, provides: brought proceeding “No action or shall be by any person having claiming or to have a cause of action complaint ground any complaint or or for issuance or
legal remedy for wrongs
grievances
or
based on or related
any
to
civil service
law
this State or the administration
thereof unless such
proceeding
action or
is commenced and
year
served within one
after such cause of action or com
plaint
ground
or
legal remedy
issuance of
writ
first arose." This is the statute of
applicable
limitations
salary claims
employees
separated
or those who have been
(Philbrick
from service
Board,
Personnel
State
53 Cal.
App.2d 222, 230
634])
P.2d
and controls the time for
[127
bringing any
upon
action
a claim for overtime services.
(Broyles v. State Personnel Board,
It is conceded proceedings that each of these was com within year menced one petitioner’s after the date of sep aration from Relying upon service. Dillon v. Pension Board of mmrs., Co Cal.2d 427 800], A.L.R. respondents contend that the statute commenced to run upon August 21, 1945, department when rejected all claims for accumulated overtime. argue Martin and Redwine that this contention was concluded Howard Lampton, supra, pp. 456-457, which held that the statute did not start run until the date of from service.
In the Dillon case, question before the court was whether period upon limitation right to claim a pension widow’s commenced to run at the death of the hus- band or was to be measured from payment the date each pension would have become Holding due. that the date of death was decisive, the court said: “A cause of action accrues when a suit thereon, maintained and the statute of limitations begins therefore run at that time. (Citations.) The cause of action to establish pension plaintiff accrued to at the time of her husband’s death. At time following the death she could demand pension upon the board and refusal could maintain (P. a suit to enforce 430.) such action." compel No cause of action to of over time claims accrued to Martin prior and Redwine to their separation from service. date, they might Until that have given compensating been time off depart whenever their superiors mental deemed it convenient to the service. petitioners remedy legal compel superiors their give any specific them time at time, off Only or at all. in uncompensated event overtime remained *9 compel them to to right accrue from did separation service department. the action upon depart- the however, that argue, respondents The a cause overtime for accumulated of credits ment's denial time off or compensating compel accrued, “not to action status as a to establish off, time but equivalent of cash the if, usable his credit to having compensable overtime person granted.” off could compensating time when as and had a cause petitioners is that the essence, position this for overtime compensation right to to establish action Although right. remedy to enforce such if was no even there apparently respondents it, made reference is to specific declaratory relief. for might be an action there suggest that an action would availability of such However, the upon commencing period limitations way in no affect pay for accumu obligation breach of its department’s Maguire v. Sav. As in Hibernia stated lated overtime. 1062], “the 151 A.L.R. Soc., 23 Cal.2d & L. ordinary at law applicable to actions period of limitations applied in like manner equity should be and suits declaratory is declaratory Thus, if relief relief. actions breached obligation which has been sought with reference an ’ relief right to commence an action coercive and the arising is barred of action therefrom the cause declaratory likewise barred. statute, right relief is declaratory sought there hand, relief is ‘before the other if On obligation respect to which said a breach of the has been statutory period after sought,’ or within the declaration by lapse breach, right to relief is not barred anomaly (Citations.) There is no in the fact that time. declaratory relief with party may have a to sue for Quiet title limitations. setting motion the statute of out declaratory actions, may actions, be main forerunners of asserted, but property an claim to when adverse tained does not commence to run at period limitations (P. 734.) date.” Martin are entitled to which and Redwine amounts “projecting the accumulated computed
are to be equal lump sum will basis so on a calendar paid [they] have been [they] would which amount ’’ (Gov. separated from the service. time off but not taken the separation service, his 18005.) the time of At salary per month, per $340 $1.70 amounted to or Martin’s Subsequent February 6, 48-hour upon week. hour based equal hours, he or a sum accumulated overtime 100% salary to $170.85. Redwine’s at the time of his per month, per from service was hour. For $310 $1.54 legally the 33 hours of accumulated overtime for which he compensation, claim he is entitled $50.82. judgment ap- Insofar as the directs the state officials to *10 prove petitioners’ the claims in of these excess enumerated amounts, judgment the respects, is reversed. In all other affirmed, party it is each pay appeal. his own costs on Gibson, J., Shenk, J., Traynor, J., Spence, J., C. con- curred.
CARTER, J.I dissent.
These were.correctly by cases decided the District Court of Appeal, (see Third District Martin Lampton, (Cal.App.) v. 21) 240 P.2d I adopt expressed. the views there How ever, I desire to position by majority comment on the taken here.
The record discloses
employees
that the state
here involved
worked
express
overtime at the
command of their superiors
promise
with the
of time off for the overtime, yet the ma-
jority denies
compensation
them
grounds
therefor on the
that
there
statutory
is no
authority for
payment
of such over-
promise
time or
pay it,
and that as to their claim for over-
time since the enactment of section 150.5 of the State Civil
(Stats. Service
753)
Act
ch.
expressly
provid-
1943
ing
pay,
for overtime
by
it is barred
the statute of limitation.
pay here claimed must be allowed
The overtime
under
Christian,
417],
In addition, however,
state
estopped
the
is
to assert that
department
the
through
of motor vehicles
the chief of the
highway patrol did
authority
promise
not have
time off
for overtime. The case of Boren v. State Personnel Board,
981],
Cal.2d 634
P.2d
clearly distinguishable.
In
[234
statutory
the Boren
positive
case there was
authority to trans
employee
fer
part
(here
an
from one
of the
state
another
positive statutory provision
we have no
that
shall
there
pay
overtime;
the
are
statutes
to the contrary) and there
showing
unjust
was no
in that ease of
enrichment
the state
expense
employee
at the
as we have here. Here the
promised
time off to compensate for overtime.
In reliance
he gave
thereon
extra
the
If the
state.
may
paying
state
take that extra labor without
for it as the
majority holds,
being unjustly
the state is
the
enriched at
expense
employee.
have, therefore,
the
We
case
clear
estoppel.
many
are
estoppel may
There
cases where
run
against
government. (See
cited,
County
eases
Farrell v.
Placer,
323].)
Cal.2d
153 A.L.R.
A few
be pointed
justice
instances
out in which the
invoking estoppel
present
as much
even
less than here.
Superior
Times-Mirror Co. v.
Court,
597
1002],
city
estopped
property
373
P.
the
was
claim
[35
which it
in
owned but said it did not and
reliance thereon
person
the
in
thereof
a
possession
who had been
built
build
ing
situation,
on it. The
except
through
same
it was a canal
a city,
Co.,
was involved in
v. Fresno C.
I.
98
Fresno
&
Cal.
943],
city
179
P.
claimed
the
streets was
Land
[32
considered in Sacramento
I would, therefore, judgment. affirm the SCHAUER, J., Dissenting. judgment. would affirm the I It that before trial court’s fundamental California judgment appeal appellant reversed on will be must show resulting miscarriage has error of law there been justice. (Cal. 4½.) Const., VI, art. I find do not showing here. suggestion overreaching
There is no on fraud part petitioner. faithfully discharged of either Each *13 periods time during the assigned him and each
duties to regular in of his hours many hours excess involved worked 1940, 1941, 1942, years 1939, and duty. Thus, during the 370.75 overtime hours a total of 1943, Mr. Eedwine worked off, leaving compensating 38 hours time and was allowed him. compensating hours off due Dur- of 332.75 net balance performed a total of 1941, 1942, 1943, and Mr. Martin ing 32.5 and was allowed hours 568.5 hours of overtime work off, leaving balance due him of 536 compensating time compensating time off hours.
During period when the overtime balance was accru- “Headquarters outstanding a ing appears there to have been (Headquarters providing either that General General Order” 295) beyond “Employees Order No. ordered to work ordinarily required or hours overtime in addition to hours day’s regular work, may what considered their full be day following on at other con- allowed time off some worked,” venient time in lieu of the overtime hours or that (Headquarters 394) “Employees General Order No. ordered beyond ordinarily required work the hours and considered days compensating full work allowed time as a off in lieu of such overtime worked.”1 position petitioners employes in appears
It thus compensating time off to balance their entitled to here were at the compensating time off be allowed overtime, such Although (prior employe’s superior officer. of the convenience 1943) providing no statute for cash February 6, there was quite ap- it is for overtime worked in settlement expect balance its accounts with did that the state parent equivalent allowing an overtime services employes for petitioners If compensating time off. here amount indefinitely and in the state service had even- remained superiors, of their been allowed the tually, at the convenience compensating overtime as time off I of their amount full litigation nor based on such allow- neither this think that arisen. have would ever ance September 28, 1939, 1Headquarters 295 was dated Order No. General 1939, 1, superseded October Head became effective its terms 23, 243, July Headquarters quarters issued 1936. Order No. General August superseded was dated No. Order No. 394 General Headquarters 243 Henderson, General Order No. is not shown 295. substance of companion post, appear in of Jarvis v. case here does fit 426]) p. but there no contention it differed 600 [255 respect materially Nos. 295 and 394 of com to the allowance worked, pensating off overtime
However, apparently recognition of the fact that em- ployes who had accumulated substantial amounts of over- might not be able remain in employment time credits enough balancing long to work out a of the account on com- pensating might time off basis and that there be a serious question employe as to the assert, or the pay cash, state to claims the value of the overtime which *14 might uncompensated remain separation a service, from the Civil Service Act was amended to cover State the situation. February 6, 1943, Effective section 150.5 pro- was added. It (Stats. 1943, 2, p. 136; vides ch. 20, Code, 18005) now Gov. : § “Upon separation from service part, without fault on his a person lump payment is entitled to a sum the time for unused or accumulated vacation or for by time off to which he previous is entitled reason of over- compensating time work where time off for overtime work is provided by appointing power by the rules of the State Personnel Board. computed by
“Such shall be projecting sum the accumu- lated time on calendar lump basis so that the sum will equal the amount which the would paid have been he separated had taken the time off but not from the service. separated through Persons from service fault of their own are lump entitled to sum for such compensating time similarly off for work, computed, overtime and in addition, any, portion, if of unused vacation as the Per- State ’' sonnel Board determine. objection applying I see valid such section to the petitioners beyond here. Their service extended the effective quoted Up date of the statute. to and at the time of their separation, justified the trial in court was concluding, they compensating had a time off. The state could settle them permitting that account with either them to continue employment prevailing wage at the they current until given fully been compensating time off to balance their ac- or, by quoted cumulated overtime statute, virtue which presume Legislature good we must found reason en- acting, “lump payment.” it could settle sum That the “lump payment” sum more was desirable to the state than having employe continue on the payroll, occupying position but on a time off basis until his accumulated over- fully offset, readily was is understandable. The state may well have fill needed to position person with who immediately would be available for Upon separation work. part petitioners, service without fault on their “lump entitled sum statute, virtue of the became ” gift not payment. public money; present This it does is no they petitioners anything not with of value which have merely settling a cur- earned; it is an alternative method of advantageous it. rent state found to be account which the has * Kirkwood, (Cal.) my in Treu v. Much that is said dissent 409, applicable here. equally justice resulting miscarriage of law Since no error of judgment shown the should affirmed. rehearing April denied
Respondents’ petition for a Carter, opinion were J., Schauer, J., 1953. granted. petition should be Apr. 6281. Bank. No. 1953.]
[Sac. A. H. HENDER JARVIS, Appellant, L. J. Petitioner and Vehicles, Motor SON, Department as Director of Appellants. etc., al., Respondents and et *15 Supreme May 1, rehearing granted *A Court on 1953.