A final contention is that, even if Miss Treu is entitled to a cash payment for overtime work, it should be computed upon the basis of her salary at the time the work was performed, rather than her salary at the time of separation. Miss Treu relies 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], holding that in the absence of statute, a state employee is entitled to payment upon separation from service for properly authorized overtime work. She also contends that a promise of compensating time off is not a prerequisite to payment for overtime.
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.
A final contention is that, even if Miss Treu is entitled to a cash payment for overtime work, it should be computed upon the basis of her salary at the time the work was performed, rather than her salary at the time of separation. Miss Treu relies 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, holding that a state employee is entitled, in the absence of statute, to payment upon separation from service for properly authorized overtime work. She also contends that a promise of compensating time off is not a prerequisite to payment for overtime.
Encouraged by Pohle, public employees increasingly sought lump sum payments. And in cases such as Howard v. Lampton (1948) 87 Cal.App.2d 449 [ 197 P.2d 69] and Clark v. State Personnel Board (1943) 56 Cal.App.2d 499 [ 133 P.2d 11], the courts enthusiastically complied. But the lower courts were misreading Pohle and, in Martin v. Henderson (1953) 40 Cal.2d 583 [ 255 P.2d 416], the Supreme Court called a halt.
The rule of that case is that a state civil service employee has the right to a lump sum payment upon separation from service in lieu of compensatory time off which he was promised for overtime worked but which he did not receive prior to separation. In Howard v. Lampton, 87 Cal.App.2d 449, 197 P.2d 69, the rule of the case is said to be codified in Section 18005 of the Government Code. That section in effect provides that upon separation from service a civil service employee is entitled to a lump sum payment as of the time of separation for any time off to which he is entitled by reason of previous overtime work where compensating time off for overtime work is provided by the appointing power. Under the Clark case the payment of the lump sum on separation is based on breach of contract, namely, a contract to allow compensating time off prior to separation.
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.
Thus, only if overtime work remained uncompensated upon appellants' separation from service did their right to demand payment in cash become fixed, and the statute of limitations commence to run. Adams v. City of Modesto, 350 P.2d 529, 534-535 (Cal. 1960); Martin v. Henderson, 255 P.2d 416, 422 (Cal. 1953); Howard v. Lampton, 197 P.2d 69, 73 (Cal.App. 1948). See also: Grossman v. City of New York, and Vaccaro v. Board of Education of City of New York, supra.
'The terms and conditions of civil service employment are fixed by statute and not by contract.' It is to be noted also that the Supreme Court in the Martin case disapproved language contained in cases relied upon by respondent, viz., 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, insofar as they determine that a state officer or employee in the absence of specific statutory authority is entitled to a cash payment for accrued overtime on separation from service. In Treu v. Kirkwood, 42 Cal.2d 602, 268 P.2d 482, 484, the secretary, Miss Treu, of the lieutenant governor (a non-civil service employee) was required to work a lot of overtime and was promised that she would be paid for overtime as it would be impossible for her to have any time off because of the increased amount of work.
In those cases the petitioners were likewise Highway Patrol officers, and the factual situations, so far as these contentions are concerned, were not substantially different from the instant case. Upon the authority of Pohle v. Christian, 21 Cal.2d 83, 130 P.2d 417, Clark v. Personnel Board, 56 Cal.App.2d 499, 133 P.2d 11, and Howard v. Lampton, 87 Cal.App.2d 449, 197 P.2d 69, we decided adversely to respondents' contentions, and we refer to our opinion in those cases for a discussion of these contentions of respondents. Respondents' third main contention is that if, as found, a valid contract was made for compensating time off, petitioner's claims for the cash value on separation from service are barred by the statutes of limitation.