Opinion
Page __
__ Cal.App.2d __ 240 P.2d 21 MARTIN v. LAMPTON, Director of Department of Motor Vehicles, et al. REDWINE v. LAMPTON, Director of Department of Motor Vehicles, et al. Civ. 7947. California Court of Appeals, Third District Jan. 21, 1952.Hearing Granted March 20, 1952.
Subsequent opinion 255 P.2d 416.
Rehearing Denied Feb. 13, 1952.
[240 P.2d 22] Wilmer Morse, Deputy Atty. Gen., for appellants.
James H. Phillips, Sacramento, for respondents.
SCHOTTKY, Justice pro tem.
Petitioners Martin and Redwine, former State Traffic Sergeant and State Traffic Officer, respectively, brought separate mandate proceedings on April 21, 1948 and March 11, 1948, respectively, to compel approval of claims for overtime worked between 1939 and 1943 which had not been compensated for by compensating time off prior to their separation from the California Highway Patrol. The cases were consolidated for trial and resulted in a judgment directing a peremptory writ to issue requiring the respondents below to approve claims in the sum of $872.95 and $512.44, respectively, the cash value of the claimed overtime. From this judgment respondents have appealed.
There is no confict as to the facts and we shall summarize briefly the factual situation as shown by the record and as found by the court.
During all times the salary of each petitioner was fixed on a monthly basis and the monthly salary was fully paid. Pursuant to Bulletin No. 323 issued on June 5, 1945, by the Chief of the Highway Patrol, petitioner Martin filed a claim for overtime, but at the time of his separation from the service on April 30, 1947, he had received no compensating time off for such overtime. Likewise petitioner Redwine filed a claim for overtime in 1945 but had received no compensating time off for this overtime at the time of his separation from the service on March 16, 1947.
During the period between February, 1941 and September, 1943, petitioner Martin worked 513 1/2 hours in excess of his regular hours of duty, 100 1/2 hours of which were worked after February 6, 1943; and during the same period petitioner Redwine worked 332 3/4 hours in excess of his regular hours of duty, 33 hours of which were worked after February 6, 1943.
During the period that Martin worked the extra hours claimed by him his monthly salary was first fixed at $245, then at $260, then at $275, then at $290, and finally at $300 per month, and at the time of his separation from state service by retirement, his monthly salary was $340 per month. During the same period Redwine's salary was first fixed at $220, then at $230, then at $245, and finally at $255 per month, and at the time of his separation from service his monthly salary was $310 per month. The salaries used by the trial court as a basis for figuring the cash value of the extra hours were the salaries at the time of separation rather than the salaries at the time the work was performed. That petitioners worked the overtime hours for which they claim compensation is not denied by respondents nor is it claimed that compensating time off was ever allowed them.
On September 28, 1939, effective October 1, 1939, the Chief of the Highway Patrol issued Headquarters General Order No. 295, with reference to 'Regular Days off, Accumulative Days, and Overtime,' stating therein that it superseded and cancelled Information Bulletin No. 52, issued May 17, 1933, and other previous orders in reference thereto. This order provided that in the future employees ordered by their superiors to work on their regular days off or legal holidays, would be allowed days off in lieu thereof which would be termed accumulative days, and that such accumulative days, must be taken as soon thereafter as practicable and at the convenience of the service. It also provided that '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.'
On August 5, 1942, Headquarters General Order No. 394 was issued, effective [240 P.2d 23] that day, providing that: '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, with the approval of the Acting Director of the Department of Motor Vehicles, issued 'Information Bulletin No. 323,' addressed to all members of the Highway Patrol. It provided that any claims for overtime hours accumulated prior to September 29, 1943, should be reported to the department in writing, accompanied by evidence in affidavit form in support thereof, on or before June 30, 1945.
Section 18005 of the Government Code, which in 1945 codified a portion of Chapter 20 of the Statutes which became effective on February 6, 1943, provides: 'Upon separation from service under Part 2, without fault on his part, a person is entitled to a lump sum payments as of the time of separation for any unused or accumulated vacation or for any time off to which he is entitled by reason of previous overtime work where compensating time off for overtime work is provided for by the appointing power or by rules of the State Personnel Board.'
Respondents make an earnest and forceful argument for a reversal of the judgments. They base their argument on three major contentions:
First, that under the law as it stood at the time the work was performed, payment of the monthly salary of an officer was payment in full for all services that might be required of him; that there can be no such thing in the absence of statute as extra hours so as to give rise to a monetary obligation over and above his monthly salary.
This contention is made only with respect to the hours worked prior to February 6, 1943, the effective date of Section 150.5 of the act; and respondents do not attack the judgment as to hours worked after February 6, 1943.
Second, that the claims of petitioners are barred by the statutes of limitation, irrespective as to whether the hours were worked prior to or subsequent to February 6, 1943.
Third, that, in any event, the cash value of overtime worked prior to February 6, 1943, should be based on the salary at the time it was worked rather than the salary at the time of separation.
In Pohle v. Christian, 21 Cal.2d 83, 130 P.2d 417, decided in October, 1942, the right of a civil service employee on separation from the service without fault on his part, to compensation in cash for unused vacation time was established; and in Clark v. State Personnel Board, 56 Cal.App.2d 499, 133 P.2d 11, decided in January, 1943, a like right to a cash payment for overtime worked for which compensating time off had not been granted was decided. Also in an opinion of the Attorney General, rendered on July 26, 1944 (N.S. 5597), it was stated that 'The right of a State employee, separated from service without fault, to a lump sum payment upon separation for accrued vacation rights was established in Pohle v. Christian (Oct. 1942), 21 Cal.2d 83 [130 P.2d 417]. The right to payment under similar circumstances for overtime worked, when departmental rules provided for compensating time off was established in Clark v. Personnel Board (Jan. 1943), 56 Cal.App.2d 499 [133 P.2d 11].'
Statutory recognition of the principles enumerated in those decisions appears in Section 18005 of the Government Code, hereinbefore quoted.
Respondents attack the soundness of the decision in the Clark case and cite earlier cases which they contend are contrary to the holding of the Clark case. It would serve no useful purpose to discuss the decisions cited by respondents because this court, in the case of Howard v. Lampton, 87 Cal.App.2d 449, 197 P.2d 69, not only cited the Clark case but reaffirmed what was held therein, and a hearing was denied by the Supreme Court. We do not [240 P.2d 24] agree with the contention of respondents that our decision in the Clark case is basically unsound, but even if we did agree with such contention, we believe that any overruling of the Clark case should be by the Supreme Court, and that we should follow the Clark case until it is overruled. However, we cannot refrain from stating that the Legislature in enacting said Section 18005 as an urgency measure so soon after the decisions in Pohle v. Christian and Clark v. State Personnel Boards, no doubt believed that the doctrine of those cases was sound and should be written into the statutory law of our State.
There is considerable similarity between the instant case and the case of Howard v. Lampton, supra. In that case petitioners sought a writ of mandate against the same respondents to compel payment of the claims of petitioners for overtime worked by them between January 1, 1939, and September 28, 1943, while employed as members of the State Highway Patrol, and for which no compensating time off was allowed them. In affirming the judgment granting the writ of mandate, this court referred to and approved the cases of Pohle v. Christian, supra, and Clark v. State Personnel Board, supra, and said at page 454 of 87 Cal.App.2d., at page 71 of 197 P.2d:
'As to the effect of Orders No. 295 and No. 394, appellants contend that they did not grant compensating time off, but merely granted authority of an immediate superior to allow it, that petitioners did not show that their immediate superiors had allowed them such time off; and that it was demonstrated, by the provision that overtime hours were not to become part of headquarters records, that it was not intended to make the allowance of compensating time off a right under the terms of employment. In short, the whether or not compensating time off should be granted an employee was a matter of discretion on the part of his superior, and that it was not shown by petitioners that such discretion had been exercised in their behalf by their superiors. We find no merit in this contention. The two orders aforesaid were a recognition of the right of an employee to be allowed time off for hours worked in excess of his regular hours of duty. And while such orders left it to the immediate superiors to determine when such time off should be taken, they did provide that 'overtime shall be adjusted' by such superiors, thus making it the duty of such superiors to so adjust them. If such orders were not intended as recognizing a right to compensating time off for all overtime worked, then superiors might grant it to one and not to another, a discrimination which would have been devastating to the morale of the employees and which could not reasonably have been intended.
'Nor do we attach any significance to the provisions that overtime hours should not become a part of the headquarters' record, in so far as the right of employees to such time off is concerned. It is not contended that petitioners did not work the overtime hours for which they claim compensation, or that such overtime was not made a matter of record with their immediate superiors. It is quite as reasonable to assume that this provision had for its purpose a desire not to increase the burden of keeping such headquarters' records as it is to assume that it was meant thereby to limit the right of employees to such compensating time off or leave it to the whim of immediate superiors.
'Furthermore, Bulletin No. 323, issued on June 5, 1945, the subject matter of which was declared to be 'overtime hours accumulated prior to September 29, 1943,' was a recognition by the department itself that employees were entitled by previous orders to such accumulated time off; and the provision therein for the making of such proof indicates that the fact that same had not theretofore been made a part of headquarters' records was not considered as having affected the rights of employees thereto.'
Respondents' second main contention is that the findings do not support the judgment in that they show petitioners' causes of action to be barred by the statute of limitations; and respondents assert that on August 21, 1945, the California Highway Patrol repudiated all liability on the part of the State for the overtime [240 P.2d 25] hours claimed to have been worked prior to September 29, 1943, and denied petitioners the right to take any compensating time off whatsoever therefor or to receive the cash equivalent on separation. They thus point out that the actions were not commenced either within one year after the overtime was worked or within one year after the obligation was denied, and argue that such actions were barred by Section 52 of the State Civil Service Act (now Government Code Section 19630).
This same contention was made in Howard v. Lampton, supra, and in deciding against respondents' contention this court said, 87 Cal.App.2d at page 455, 197 P.2d at page 72:
'As for the application of any statute of limitations, the general orders above mentioned contained no provision that time off in lieu of overtime worked must be taken within any specified time. When it should be taken was left to the discretion of the immediate superior; and an employee obviously could not have demanded or taken it except at such time as his superior might allow, depending upon what was deemed by him to be convenient under conditions of the service then existing. Statutes of limitations are not intended to apply to any person when the performance of an act by him is not within his right or power.
'Appellants rely upon section 52 of the State Civil Service Act as amended (now Gov. Code, sec. 19630), which provided that 'No action or proceedings shall be brought by any person having or claiming to have a cause of action or complaint or grounds 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. * * *'
'Plainly, under the circumstances shown by this record, and the decisions in the Pohle and Clark cases, no right in petitioners for the issuance of any writ of legal remedy arose until their separation from the service; they could not have compelled the granting of compensating time off; it was only to be taken at the convenience of the service and at times deemed convenient by their superiors. Therefore, such compensating time off might have been given to petitioners by their superiors at any time before their services terminated. Surely it cannot be said that if such superior officer had not deemed it convenient to give compensating time off within a year or even three years of the time when overtime was worked, petitioners could have compelled it, since it might still be given them by such superior.
'Appellants also argue that in any event a cause of action on behalf of respondents as to overtime worked prior to October 1, 1939, must be held to have arisen on August 21, 1945, when Information Bulletin No. 329 was issued by the department. That bulletin purported to deny and cancel all claims for overtime hours worked prior to September 29, 1943, which had been presented by 46% of the members of the patrol pursuant to instructions contained in Bulletin No. 323. It was recited in said bulletin that considerations upon which the denial and cancellation were based were that it was the general understanding that an officer's salary was in full for all services performed by him, including overtime worked; that it was never intended that overtime hours worked should accumulate indefinitely; that headquarters had no record against which to verify the claims submitted; that it was believed that by failure of an officer to arrange with his superior for compensating time off at the earliest possible date constituted a waiver of overtime; that it was believed that some of the claims or some portion thereof were barred by statutes of limitation; that 60% of the claims filed did not comply with Bulletin No. 323, and that it was believed that in legal effect this may have constituted a waiver; that the fact that officers who had left the service had not been allowed compensating time off or paid a cash equivalent indicated an understanding by the officers themselves that they had no [240 P.2d 26] claim for overtime worked prior to September 29, 1943; and that there was no legislative provision for compensating employees for overtime.
'This bulletin did not base its refusal to recognize the claims filed on the ground that the appellants were without power to grant cumulative time off, nor deny the tacit recognition in Bulletin 323 that they had such power; and it is a little difficult to arrive at the motive behind its pronouncements in view of the decisions in the Pohle and Clark cases, the opinion of the Attorney General herein previously mentioned, and the enactment in 1943 of the legislation now embodied in section 18005 of the Government Code, all of which preceded the issuance of Bulletin 329. But whatever motivated it, it did not start a statute of limitations running against petitioners, since any right to payment in cash for overtime could only be enforced on separation from the service, and, as hereinbefore stated, claimants could not have compelled the granting of time off the allowance of which was discretionary with their superiors as to time and convenience. Nor do we believe that such bulletin was effective to cancel claims which had been filed pursuant to Bulletin No. 323 which preceded it, the filing of which was, in effect, an acceptance by employees of the offer made by the department in that bulletin.
'Petitioners had the right, then conferred by statute, to payment for overtime upon separation from the service, which statute did not limit the time within which such overtime should have been worked; and Order No. 295, which allowed time off in lieu of overtime worked, was still in effect. These petitioners had the right to continue their employment notwithstanding this pronouncement, and to rely upon their statutory right to compensation in cash if and when they might terminate their employment.'
Respondents' third main contention is that the trial court erred in not basing the cash value of the overtime worked prior to February 6, 1943, the effective date of sec. 18005, on the salary as of the time when overtime was worked rather than as of the time of separation.
Although this point was not raised or discussed in the Howard case, that case appears to have been presented and tried on the theory that an employee who is entitled to cash for unused overtime at the time of separation is entitled to be paid as of the rate of pay on his last day of work, and the judgment was rendered and the petitioners paid upon that basis in that case.
We believe that the trial court correctly determined that petitioners were entitled to have their lump sum payments based on the salary as of the time of separation. During the period between the working of such overtime and the time of separation it was within the power of the respondents to grant compensating time off, and such compensating time off could only be taken at times deemed convenient by respondents. As to the overtime involved in the instant cases, compensating time off might have been granted to petitioners at any time prior to their separation from the service. If respondents did not grant said compensating time off prior to petitioners' separation from the service because they did not deem it for the convenience of the service, or for any other reason, we see no escape from the conclusion that at the time of such separation from service petitioners would be entitled to payment for such overtime at the rate of salary received at the time of separation.
Respondents concede that Section 18005 of the Government Code specifies that upon separation from service an employee is entitled to a lump sum payment as of the time of separation for previous overtime work, but point out that this section did not become effective until February 6, 1943. Stats. 1943, ch. 20. We do not believe that Section 18005 effected any change in the law, but that it merely clarified the law and wrote it into our statutes. Respondents state that common practice in private industry is that workmen are paid overtime at a rate based on their rate of pay at the time the overtime was worked but respondents fail to point out that it is the common [240 P.2d 27] practice of industry to pay the employee the cash value of said overtime at the payday following its performance. We entertain no doubt that if an employee in private industry were entitled to be given compensatory time off in lieu of cash payment, and he did not receive compensating time off prior to his separation from such employment, he would, upon such separation, receive lump sum payment at the rate he was earning at the time of separation.
Respondents also state: 'When the State, itself, adopted the first true overtime statute (Stats. 1943, Chap. 1041) it provided that the employee 'shall receive overtime compensation based on his regular rate of pay for all such overtime.' By Rule 133 the State Personnel Board has provided under that statute that 'The rate of compensation for overtime for employees * * * shall be the hourly equivalent of the employee's monthly salary as of the time the overtime was worked,' and by Rule 136 it has provided that when an employee leaves the employment of one state agency and enters the employment of another state agency, and has overtime to his credit, for which compensating time off may be granted, he may be paid in cash therefor, in which event the rate of compensation for the overtime shall be the hourly equivalent of the employee's monthly salary as of the time the overtime was worked, as provided in Rule 133.'
But respondents fail to point out that said rules were adopted after petitioners separated from State service and also fail to point out that Rule 134 provides that if no compensating time off is granted within 12 months following the working of the overtime the employee shall be paid for such overtime on the next payroll.
These rules referred to by respondents must be read and considered along with Section 18005 of the Government Code, supra, which is in accordance with the rule laid down in Clark v. State Personnel Board and Howard v. Lampton, supra, which rule is that upon separation from State service a person is entitled to lump sum payment as of the time of separation for any previous overtime work for which he has not received any compensating time off.
Respondents also argue that it is unfair that the State should have to pay a State employee at a different rate from the going rate at the time the services were performed. The Legislature, in enacting Section 18005 of the Government Code, did not think so, but evidently believed that it would be unfair to an employee to withhold from him payment for overtime, and to not grant him compensating time off, and then, upon separation from service, pay him at the rate of compensation at the time the overtime work was performed. For in such a case the employee has not only been deprived of the benefit of the use of the money during the intervening period but he would be receiving it at a time when its purchasing power was greatly reduced.
No other points raised require discussion.
In view of the foregoing the judgment is affirmed.
ADAMS, P. J., and PEEK, J., concur.