Polk v. State of California

This is an action against the state, brought under the authority of the act of the legislature of February 28, 1893, (Stats. 1893, p. 57,) to recover a certain amount of money alleged to be due plaintiff for services rendered the state board of railroad commissioners from the twenty-second day of April, 1898, to the fourteenth day *Page 386 of December, 1898. The defendant demurred to the complaint upon the general ground of want of facts to constitute a cause of action, and upon the further ground that the action was barred by the limitation of two years declared in said act of February 28th. The demurrer was sustained and judgment rendered for defendant, and plaintiff appeals from the judgment. The facts which, under our view of the case, are necessary to be stated are these: Plaintiff was a practical railroadman of many years' experience, and had great knowledge and skill of and in the business of railroading, and he was employed during the time above stated by the said board to assist them in the performance of their duties. On April 22, 1898, the board passed a resolution employing the plaintiff and providing that his compensation should be afterwards fixed by the state board of examiners; and on December 14, 1896, they passed a resolution declaring that his work had been satisfactory, and requesting the state board of examiners to fix compensation for his services from the twenty-second day of April down to and including the said fourteenth day of December. It is averred that plaintiff presented his claim to the board of examiners on December 28th, and that on December 31, 1898, there was a meeting of the board of examiners, at which two of the members were present, and that the board, acting through said two members, on that day did fix plaintiff's compensation at the sum of $7,709.50. But this action was not entered on the minutes of the board, and there is no record evidence of the same. It is averred that this want of record evidence was caused by the inadvertence and mistake of the secretary of said board. It is averred that the board of examiners took no further action in the matter, and that, although the board was requested by plaintiff to take further action and to allow the said claim, the board has neglected and refused to do so, and that his claim has "never been allowed by said board of examiners." There is no pretense that there is any express power given the board of railroad commissioners, either by the constitution or statute, to contract for such services as those rendered by plaintiff; but it is contended that such power is implied because his employment was necessary to the discharge of their duties by the said commissioners. *Page 387 We do not deem it necessary to consider the question whether such employment could be upheld, even if approved by the legislature, nor the point that the alleged cause of action accrued on the fourteenth day of December, 1898, and that the action is barred because not brought within two years from that time, because no appropriation has ever been made by the legislature to pay plaintiff's claim, nor has it been in any way approved or recognized by the legislature, and this fact is determinative of the case against the contention of appellant. This view is clearly stated and sustained in Lewis v. Colgan,115 Cal. 529, a case relied on by appellant, and which goes as far as any other case in sustaining the somewhat dangerous doctrine of implied powers of state boards and officers. That was not an action against the state, but a proceeding against the state controller to compel him to draw a warrant for the amount of plaintiff's claim for services as an expert employed by the state board of examiners, which had been allowed by said board, and for the payment of which the legislature had made an express appropriation. In answer to the contention there made, that the recognition of implied powers of employment would lead to abuses by boards and officers which could not be reached, the court in the Lewis case said: "It does not follow from this view that their authority in the matter is unlimited and unrestrained, as appellant assumes it would be. On the contrary, whatever they do is subject to the approval of the legislature. They may employ an expert, but he cannot be paid without an appropriation, and he can be paid no more than the legislature may deem reasonable. He is not an officer with a fixed term of office and a salary ascertained by law, but a mere employee of the board, holding his position at their pleasure and entitled to such compensation only for the time of his employment as the board may allow and the legislature approve by the appropriation of money for the payment. And when the legislature does make an appropriation for such payment, it must be presumed — as held in the Rankin case — that the facts were found to be such as to render the employment necessary, for this is a question of fact which must be decided by the legislature, and not a question of law for the courts." It may be conceded that if a party have a general cause of action against the state not dependent on *Page 388 previous legislative action, — as, for instance, for negligence, — he could maintain an action thereon, although there had been no previous appropriation to pay the judgment which he might obtain; in such case he would have to rely on a future appropriation. But in the case at bar the recognition by the legislature of plaintiff's claim was essential to the sufficiency of the cause of action. The judgment appealed from is affirmed. Lorigan, J., and Van Dyke, J., concurred. Rehearing in Bank denied. Upon the petition for rehearing the following special opinions were rendered in Bank: —