Skip to main content

IN RE: the ESTATE of Mae McMILLIN

Reset A A Font size: Print

District Court of Appeal, Second District, Division 3, California.

IN RE: the ESTATE of Mae McMILLIN, Deceased. E. A. WINSTANLEY, Public Administrator, Petitioner and Appellant, v. Morton J. ROBINSON, Contestant and Respondent (thirty five cases). In the Matter of the ESTATE of Maude Evelyn ARNOLD, Deceased. In the Matter of the ESTATE of May L. BARRETT, Deceased. In the Matter of the ESTATE of Joseph W. BIELL, Deceased. In the Matter of the ESTATE of Anna L. BRANDON, Deceased. In the Matter of the ESTATE of Gilbert M. CRUZ, Deceased. In the Matter of the ESTATE of John EFFLAND, Deceased. In the Matter of the ESTATE of Margaret FREEDMAN, Deceased. In the Matter of the ESTATE of Idah Martino GREY, Deceased. In the Matter of the ESTATE of Albert HAYDUK, Deceased. In the Matter of the ESTATE of Philip F. HAVEY, Deceased. In the Matter of the ESTATE of John Michael HEFFERNAN, Deceased. In the Matter of the ESTATE of SHIH CHING LO, Deceased. In the Matter of the ESTATE of Emily F. McCARTIN, Deceased. In the Matter of the ESTATE of David C. MENDOZA, Deceased. In the Matter of the ESTATE of Ramon MENDOZA, Deceased. In the Matter of the ESTATE of Sam MILLER, Deceased. In the Matter of the ESTATE of Emma MOHR, Deceased. In the Matter of the ESTATE of Harry F. MOORE, Deceased. In the Matter of the ESTATE of Charles W. MORRISON, Deceased. In the Matter of the ESTATE of Sidney PITT, Deceased. In the Matter of the ESTATE of Byron H. RIESS, Deceased. In the Matter of the ESTATE of Bessie B. RICHARDSON, Deceased. In the Matter of the ESTATE of Bridget ROSENBERG, Deceased. In the Matter of the ESTATE of James Robert RYALL, Deceased. In the Matter of the ESTATE of Jerry STENO, Deceased. In the Matter of the ESTATE of Arthur Roland VAN PAEMEL, Deceased. In the Matter of the ESTATE of Joseph Francis WALSH, Deceased. In the Matter of the ESTATE of Clarence Charles WEAVER, Deceased. In the Matter of the ESTATE of Edna L. WELLS, Deceased. In the Matter of the ESTATE of Charles Le Roy WHITE, Deceased. In the Matter of the ESTATE of Harry WRIGHT, Deceased. In the Matter of the ESTATE of Heinrich MANN, Deceased. In the Matter of the ESTATE of Lillian M. GRIMES, Deceased. In the Matter of the ESTATE of Louis Michael BUETTNER, Deceased.

Civ. 20807–20841.

Decided: June 10, 1955

Harold W. Kennedy, County Counsel, and Baldo M. Kristovich, Deputy County Counsel, Los Angeles, for appellant. S. V. O. Prichard, Beverly Hills, for respondent.

The appeals are by the Public Administrator of the County of Los Angeles from judgments of the superior court sitting in probate entered in 35 estates sustaining the objections of Morton J. Robinson to the final account of the Public Administrator in each estate and ordering him to pay Robinson a specified sum from the funds of the estate. The proceedings were consolidated for trial and tried together. The 35 appeals have been submitted on one set of briefs. The questions involved are identical. They will be decided in one opinion.

The questions arise out of the employment of Robinson as a tax consultant by a former Public Administrator. Robinson performed tax work in the course of administration of each estate. In his final account in each estate the Public Administrator did not mention the fact that Robinson had done the tax work, nor did he request the court for an allowance for the work done. Robinson filed what he denominated ‘Objections to Final Account and Petition that Allowance be Made to Objector’ in each estate in which he alleged: he was employed by the predecessor of the present Public Administrator, as the administrator of the estate, pursuant to the provisions of section 902 of the Probate Code to perform certain extraordinary services in connection with the estate, i. e., necessary tax work in connection therewith; the services he performed; the reasonable worth of the services. He prayed that there be included in the charges against each estate and directed to be paid to him the sum specified.

The court found: 1. Robinson is a licensed public accountant. 2. From 1943 to October 6, 1953 the former Public Administrator employed Robinson to prepare and file individual and fiduciary income tax returns required by law in all estates represented by the Public Administrator. 3. It was agreed between Robinson and the Public Administrator that Robinson should be paid only from the funds of the respective estates in which such services were performed and in such amounts as might be allowed by the probate court as expenses of administration therein. 4. Robinson performed such services for the benefit of the estate, the reasonable value of which is a specified sum which he has not been paid. 5. The income tax services performed formed by Robinson and his employees for the Public Administrator ‘could at all times have been adequately and satisfactorily performed by persons selected under the provisions of the Civil Service System as established by the Charter of the County of Los Angeles.’

The court concluded: 1. Since ‘September, 1951, said Public Administrator has had the authority, by virtue of Section 902 of the Probate Code, to employ tax accountants to perform income tax services of the nature of those performed by said Objector in estates wherein said Public Administrator is the fiduciary.’ 2. The ‘provisions of the Charter of the County of Los Angeles establishing a comprehensive Civil Service System did not and do not apply to said Public Administrator in the employment of Objector as a tax accountant for said estates.’ ,3. Robinson's objections to the final account should be sustained. The judgment in each estate sustained Robinson's objections and ordered the Public Administrator to pay to him a specified sum from the funds of the estate.

The facts are not in dispute. In 1942 the predecessor of the present Public Administrator orally employed Robinson to do all income tax work in half of the estates handled by the Public Administrator. Later he orally employed him to do all income tax work in all the estates in the Public Administrator's office. It was agreed that on the completion of the work in each estate Robinson would be paid from the funds of that estate on submitting a bill to the Public Administrator for his approval and subject to the approval of the court. In 1945 the former Public Administrator orally employed Robinson to do all California inheritance tax work in all the estates in the Public Administrator's office, which he did until 1951. Robinson examined every estate in the Public Administrator's office and did the tax work in those which required such work. When Robinson's work in a particular estate was completed he submitted a statement to the Public Administrator showing the extent of the work done and his fee. The former Public Administrator approved the amount and it was included in the final account and paid after approval of the account by the probate court.

Robinson and a personally hired and paid employee spent full time in the Public Administrator's office. They had free space, free office furniture and stationery, free use of a county telephone, and access to the entire office, all at the expense of the county.

In 1951 the Board of Supervisors created the civil service position of ‘Estate Tax Analyst,’ and a civil service employee of the county took over and from that time did all necessary inheritance tax work. Robinson continued to do all the income tax work. In the salary ordinance for the fiscal year 1952–53 the Board of Supervisors created a civil service position in the office of the Public Administrator also described as ‘Estate Tax Analyst,’ a person was appointed to the position, and since September 14, 1953 he has done the same work as Robinson did prior thereto. In 1951 there was created the civil service position of ‘Estate Tax Assistant.’ In September 1953 the County Counsel advised the Public Administrator that all tax work in his office should be done by a civil service employee. The present Public Administrator was appointed on November 7, 1953. Since November 7, 1953 the Public Administrator has had a tax division composed entirely of civil service employees who have done all tax work, except in a few estates in which the court had previously appointed Robinson or private attorneys. Robinson has done no tax work for the Public Administrator since October 1953.

The Public Administrators of the City and County of San Francisco, the County of Alameda, and the County of San Diego for many years have had all income tax work necessary in all estates in which they were acting done by civil service employees. The California State Franchise Board in its Los Angeles office has more than 65 civil service employees, all qualified to do all kinds of income tax work. The Director of Internal Revenue at Los Angeles has more than 82 civil service employees who are qualified to do all kinds of income tax work.

The predecessor of the present Public Administrator was appointed administrator of one of the 35 estates here involved in 1950, of 4 in 1951, and of 30 in 1952 and 1953. Robinson performed tax work in each of the 35 estates. It is conceded that Robinson was not employed under civil service.

The primary question is whether the Public Administrator had the authority to employ a tax consultant on contract independently of the civil service requirements of the Charter of the County of Los Angeles. The present Public Administrator asserts that his predecessor could only employ a tax consultant selected under the civil service provisions of the charter. Robinson claims the Public Administrator could employ a tax consultant without complying with the civil service requirements. There is no dispute as to the reasonableness of the amounts allowed.

The Charter of the County of Los Angeles was adopted pursuant to the authority derived from the Constitution.1 The Constitution says that the charter ‘shall provide’ for ‘public administrators'; ‘[f]or the powers and duties of boards of supervisors and all other county officers,’ and ‘[f]or the fixing and regulation by boards of supervisors, by ordinance, of the appointment and number of assistants, deputies, clerks, attacheś and other persons to be employed, from time to time, in the several offices of the county, and for the prescribing and regulating by such boards of the powers, duties, qualifications and compensation of such persons, the times at which, and terms for which they shall be appointed, and the manner of their appointment and removal.'2 ‘[S]uch charter shall become the charter of such county and shall become the organic law thereof relative to the matters therein provided * * * and shall supersede all laws inconsistent with such charter relative to the matters provided in such charter.'3

The Charter of the County of Los Angeles4 provides that it is the duty of the Board of Supervisors to appoint all county officers5 and ‘[t]o provide, by ordinance, for the number of assistants, deputies, clerks, attacheś, and other persons to be employed from time to time in the several offices and institutions of the county, and for their compensation and the times at which they shall be appointed.'6 ‘The appointive county officers shall be: * * * Public administrator * * *.’7 The civil service of the county is divided into the unclassified and the classified services. No claim is made that Robinson was in the unclassified service. The Public Administrator and all positions in his office, except persons serving the county without compensation, are in the classified service.8 Positions in the classified service must be filled by appointment from an eligible civil service list after open, competitive examination, with exceptions not pertinent here.9 Each county officer is required to appoint, from the eligible civil service list, all assistants, deputies, clerks, attacheś, and other persons in the office or department of such officer as the number thereof is fixed and from time to time changed by the Board of Supervisors.10 There may be ‘temporary employment of persons on the eligible list until list of the class covering the temporary employment is exhausted; and in cases of emergency, for temporary employment without examination, with the consent of the [civil service] commission, after the eligible list has been exhausted. But no such temporary employment shall continue longer than sixty days, nor shall successive temporary appointments be allowed.'11 Section 35 reads:

‘In case of a vacancy in a position requiring peculiar and exceptional qualifications of a scientific, professional or expert character, upon satisfactory evidence that competition is impracticable and that the position can best be filled by the selection of some designated person of recognized attainments, the [civil service] commission may, after public hearing and by the affirmative vote of all three members of the commission, suspend competition, but no such suspension shall be general in its application to such positions, and all such cases of suspension shall be reported, together with the reason therefor, in the annual reports of the commission.’

No claim is made that the procedure prescribed by section 35 was follows with respect to the employment of Robinson.

The provisions of the charter with respect to the powers and duties of county officers and the fixing of their compensation supersede the general laws on the subjects.12

Two lines of cases bear on the question whether the failure to comply with the civil service provisions of the Charter of the County of Los Angeles in the employment of Robinson renders his employment void.13

State Compensation Ins. Fund v. Riley, 9 Cal.2d 126, 69 P.2d 985, 111 A.L.R. 1503, was mandate of compel the state controller to approve a claim and issue a warrant in favor of a lawyer with whom the Fund had entered into a contract for legal services. It was alleged that because of a policy of the United States with respect to the imposition of an income tax on the Fund, its officers, and employees, the integrity of the Fund was imperiled and its disruption theatened; that to protect its rights and interests, the Industrial Accident Commission had determined it was necessary to employ special counsel and had directed the manager of the Fund to enter into a contract with the lawyer, which had been done. The Fund had an attorney, assistant attorney, and various deputy attorneys, all civil service employees. The court first held that the Fund had the power to employ special counsel to protect its rights in pending litigation. It then held that the Fund could not employ such counsel independently of the state personnel board, empowered by law to enforce the state Civil Service Act. The state Civil Service Act is similar to the civil service provisions of the Charter of the County of Los Angeles. Each provides that appointments to all positions, with exceptions not pertinent here, shall be made by the appointing power in the manner provided, i. e., from eligible civil service lists. The court said, 9 Cal.2d at page 134, 69 P.2d at page 989:

‘Petitioner urges that the services to be rendered by Mr. McNab are urgent, temporary, and require expert knowledge, experience, and ability. However, it is not alleged that the services here involved could not be rendered by one selected under the provisions of the Civil Service Act, and it is admitted that no application was ever made to the personnel board for a temporary appointment as required by the statute. Petitioner does not refer us to any provision of the Constitution or statute which distinguishes between urgent temporary employment and permanent employment or between skilled and nonskilled employees, or between professional and nonprofessional services. When civil service was adopted in 1934 by vote of the people, it was unequivocally declared to be the policy of this state that every employee and officer of the state should be included therein with certain enumerated exceptions not here involved. All types of service were included therein—no distinction between professional and nonprofessional, or between temporary and permanent employment was made either in the constitutional provision or in the act. There can be no doubt that both the constitutional provision and the statute embrace within their terms professional as well as nonprofessional service.’

In the present case Robinson did not allege that the services he performed could not have been rendered by one selected under the civil service provisions of the county charter, and the court specifically found they could have been rendered by one so selected.

Stockburger v. Riley, 21 Cal.App.2d 165, 68 P.2d 741, was mandate to compel the state controller to draw a warrant in payment of a claim for services rendered pursuant to an agreement entered into by the state and American Building Maintenance Company. By the agreement the company agreed to furnish all labor and materials necessary to clean the windows in certain state buildings in Sacramento. The employment was to be continuous throughout the year. It was held that the Constitution required the services to be rendered by persons employed pursuant to the Civil Service Act. The court stated, 21 Cal.App.2d at page 167, 68 P.2d at page 742:

‘In the particular service provided in the agreement we are now considering, there is nothing urgent, temporary, or occasional in the work to be done. It requires no expert knowledge, experience, or ability that cannot be obtained from those either now in the employ or service of the state, or who cannot be brought into such service under the procedure provided by the Civil Service Act * * *.

‘When civil service was adopted, the people determined as a matter of policy that the provisions thereof applied to every officer and employee of the state except certain excepted classes, under no one of which the present character of services falls. All classes of service to the state are recognized wherein the work or labor to be performed is of that character with respect to which fitness thereof may be had by competitive examination, or as to which merit or efficiency may be developed or increased by continuous service or by promition and recognition of demonstrated ability. * * *

‘[21 Cal.App.2d at page 170, 68 P.2d at page 744.] Having in mind therefore, that the work was continuous, rather than intermittent, permanent rather than temporary, general rather than special, not confidential in its nature, unskilled rather than highly technical, a type of service already performed by employees under civil service in other departments of the state, and having in mind the intent and purpose of the people in adopting the particular amendment under consideration, and that the sanctioning of such contract as here before us would have the result of weakening or destroying the effect of the civil service, we are constrained to hold that the writ should be denied.’

City and County of San Francisco v. Boyd, 17 Cal.2d 606, 110 P.2d 1036, 1043, was mandate to compel the city controller to certify that there was a sufficient unencumbered balance in a fund that could legally be used for the proposed expenditure of $100,000 for the services of one Purcell, a civil engineer. San Francisco sought by a contract to procure the services of Purcell for a period of 5 years to aid in the solution of traffic and transit problems. One contention was that the contract violated the civil service provisions of the Charter of San Francisco which provided that all positions in all departments and offices of the city and county were in the classified civil service and should be filled from lists of eligibles “excepting * * * (4) persons employed in positions in any department for expert professional temporary services, and when such positions are exempted from said classified civil service for a specified period of said temporary service, by order of the civil service commission.” The court assumed that subdivision (4) would be complied with. The court said that a reading of the entire text of the civil service provisions of the charter indicated clearly ‘that it was the intention of the framers of the charter that civil service should apply only to persons employed in permanent positions in municipal departments to the end that public service should be free from political shifting and control resulting from changes in administration.’

Allen v. State Board of Equalization, 43 Cal.App.2d 90, 110 P.2d 73, was mandate to require the respondents to reclassify and reinstate the petitioners in the positions of investigators and pay them the salary of an investigator for periods during which they were classified as collectors. The petitioners had performed the duties of investigator over a period of almost two years without examination, certification, or appointment as such. The question was whether a civil service employee who had performed the duties of one of a higher class than the class in which his position was rated could require the personnel board to classify him in such higher position for the period during which he served in that position, and could compel the controller to pay the differential between the salary of the lower class and that of the higher class of civil service. Denying the writ, the court stated, 43 Cal.App.2d at page 93, 110 P.2d at page 74:

‘The acts of the head of a department of the state do not have the sanctity of even a legislative enactment. Far short do they fall of the force of a provision of the organic law. Of this effective constitutional provision, petitioners, as well as the members of the respective boards, had knowledge and by it they are all bound. The primary purpose of a Constitution is to place limitations upon the legislative authority as well as upon the powers of its co-ordinante branches of government. When, instead of forbidding an act, it contains a provision prescribing a course to be pursued by a department, board, commission, or an official, all statutes must be consonant therewith and any resolution, order or decree contrary to such provision by whatsoever body ordained is void. In view of the quoted language of Article XXIV, no official or board could by order made, or by services performed, promote an employee in the classified service to a position in a higher class.

‘* * * If the appointing power could, by assigning duties of a higher nature to an employee, and the state personnel board could, by classifying those duties to a higher class than that of the employee's original position, give to an employee a permanent civil service status, the entire fabric of the civil service system would fail. Promotion and appointments in civil service would then no longer be made ‘exclusive under a general system based upon merit, efficiency and fitness as ascertained by competitive examination.’'

Kennedy v. Ross, 28 Cal.2d 569, 170 P.2d 904, 905, was mandate to compel the controller of San Francisco to issue a warrant. The Director of Public Works of San Francisco had entered into a contract with the petitioner, a consulting engineer, ‘whereby that latter, employing and maintaining a staff of professional engineers and operating a chemical and biological testing laboratory in San Francisco, agreed to prepare and furnish engineering and architectural plans, specifications, estimates of cost, and contract documents required for a proposed North Point Sewage and Sludge Treatment and Disposal Plant, and appurtenant works and buildings, to be located in the Islais Creek district.’ It was contended the contract was invalid for failure to comply with the civil service provisions of the charter. On the basis of the exemption referred to in City and County of San Francisco v. Boyd, supra, 17 Cal.2d 606, 110 P.2d 1036, it was held that the contract was valid. The civil service commission had certified that petitioner was an independent contractor, that he and his employees were not subject to the civil service provisions of the charter, and that an order of exemption was unnecessary. The court said that ‘the petitioner was not appointed to nor does he hold a position in any department or office of the city’; his contract called for his expert professional services on other than a permanent basis; he was engaged to do a specific, expert, professional task for a stated consideration; the services for which he was engaged were not such as could adequately be rendered by an existing department of the city; his services could not be deplicated; and they were not within the scope of any existing civic department.

Burum v. State Compensation Ins. Fund, 30 Cal.2d 575, 184 P.2d 505, 506, was an action by a firm of attorneys to recover from State Compensation Insurance Fund attorneys' fees pursuant to a written contract entered into by the parties. The plaintiffs, as attorneys for the widow and minor children of one Davis who was killed in an industrial accident, brought an action for damages against the alleged negligent third parties. The Fund, which was the insurance carrier for Davis' employer, paid the widow $6,300 for herself and the children pursuant to an award of the Industrial Accident Commission. The Fund claimed the right to recover that amount “as special damages against [the responsible] third parties, either in a separate suit brought in its own name, or by lien imposed on the judgment in any action brought by the widow on behalf of herself and the minor childred.” It elected to follow the latter course and entered into a written contract with the plaintiffs for them to represent it in the death action and to recover the amount of its lien for a contingent fee of 25 per cent. The trial court sustained a demurrer to the complaint without leave to amend. The complaint alleged that an action in the name of the Fund as an insurer claiming subrogation would be likely to encounter prejudice and hostility on the part of a jury, while an action in the name of the widow would be likely to excite sympathetic consideration; the parties did not know of any insurance or property from which a judgment in excess of $5,000 could be satisfied; the Fund was entitled to $6,300 before any damages were payable to the widow; in view of this priority, no incentive existed for the widow to continue prosecution of her action; an incentive existed for her attorneys ‘to obtain a judgment and ‘explore the possibility of discovering additional assets subject to execution, if (they) could look to the Fund as well as to (the) widow for a fee’; and that through the services of her attorneys, ‘performed simultaneously and incidentally in the interest of the Fund,’ there would be ‘a better prospect of obtaining damages on behalf of the Fund’ than would be the case if the Fund relied on ‘the services of attorneys in the civil service employ of (the Fund’'; the services ‘were of such a nature that they could not be performed adequately or competently or satisfactorily by an attorney or attorneys selected under’ civil service. (Italics added.) The complaint also alleged that the services were performed, $5,800 collected and paid to the Fund, and the plaintiffs were entitled to receive $1,450 from the Fund. It was held that the complaint stated a cause of action. Referring to the allegation that the services could not be performed adequately or competently or satisfactorily by an attorney selected under civil service, the court observed, 30 Cal.2d at page 580, 184 P.2d at page 507:

‘The force of such allegation stems from the fact that in the conduct of its insurance business the Fund operates on a ‘fairly competitive’ basis with private insurance carriers and has the power to ‘enter into any contracts or obligations relating to the State Compensation Insurance Fund which are authorized or permitted by law.’'

The opinion continues, 30 Cal.2d at page 581, 184 P.2d at page 508:

‘[I]n line with the allegation that the reimbursement claim of the Fund exceeded the amount of known assets from which a judgment against the responsible ‘third parties' could be satisfied and the consequent priority right of the Fund in the damage recovery, the widow manifestly would have had no incentive to employ attorneys to prosecute the action for the sole benefit of the Fund and at the same time the Fund was without legal right to substitute in such litigation its attorneys or any other attorney selected by civil service examination in the place of the attorneys selected by the widow. But the Fund had a recognized interest in the death action by virtue of its claim of a lien upon any judgment that might be obtained therein and, a fortiori, it was to the Fund's advantage to have that action continued in pursuance of an approved means of effecting its reimbursement for ‘expenditures for compensation.’ Labor Code, sec. 3856. Such claim of lien undoubtedly constituted an interest in the death action as would warrant the Fund's employment of special counsel for its protection, consistent with its broad powers to conduct its insurance business on a ‘fairly competitive’ basis and to take such steps as it should deem proper to keep its losses at a minimum. * * * [30 Cal.2d at page 582, 184 P.2d at page 508]. By reason of the unique set of facts alleged by plaintiffs, the services which they were required to, and did, perform in accordance with their contractual arrangements with the Fund involved considerably more than ‘the collection of a lien.’ Allegedly, as a matter of tactics and in recognition of certain practical considerations affecting its status with reference to the death action (cf. Jacobsen v. Industrial Accident Commission, supra, 212 Cal. 440, 446, 447, 299 P. 66), the Fund negotiated its contract with plaintiffs in pursuance of one of the approved methods designed to keep its losses at a minimum by reason of compensation paid as part of its insurance business. Labor Code, sec. 3856. Accordingly, the facts pleaded support plaintiffs' allegation that the particular services here in question ‘could not be performed adequately or competently or satisfactorily’ by attorneys selected under civil service; and such pleading is sufficient, on demurrer, to bring plaintiffs' case within the exception above noted in State Compensation Insurance Fund v. Riley, supra, 9 Cal.2d 126, 135, 69 P.2d 985.'

In re Estate of Schnell, 82 Cal.App.2d 170, 185 P.2d 854, 856, was an appeal from a judgment fixing a fee of $10,000 for extraordinary legal services rendered in the estate of Anna Schnell. Orders were made in the estate proceeding authorizing the Public Administrator of the County of Los Angeles to retain the appellants, attorneys at law, for the purpose of endeavoring to recover and establish title to property claimed by the executor of the will of August Schnell and directing him to pay the attorneys for their services a contingent fee based on the value of the property recovered, the amount to be fixed by the court. The Public Administrator's petition for the orders alleged he had information there was property of the estate which the executor of the will of August Schnell asserted belonged to that estate; that the outcome of the litigation was uncertain; that he did not wish “to put the estate of Anna Schnell to the expense of employing counsel at a fixed fee, or to use the services of the County Counsel in the prosecution of an action to determine title to the securities which would also involve the estate in the necessity of paying large attorney's fees for the services of counsel regardless of the outcome”; that the appellants were willing to accept the employment on a contingent basis. Over a period of three years the attorneys, by various actions and proceedings, succeeded in recovering property of the value of $45,219.02. The trial court found that the orders authorizing the employment were void, that the attorneys had rendered extraordinary services, and that a reasonable fee was $10,000. The attorneys appealed, claiming the contract of employment was valid and should have been considered in fixing the fee, and that the court abused its discretion in not fixing the fee at a sum larger than $10,000. Without analysis or discussion of article XI, section 7 1/2, of the Constitution or of the civil service provisions of the Charter of the County of Los Angeles, the court commented, 82 Cal.App.2d at page 174, 185 P.2d at page 856:

‘In the circumstances presented, the public administrator used sound judgment and practical common sense when he engaged the services of appellants, who, through persistent effort over a period of three years, succeeded in recovering for the within estate the sum of $44,756.27 in cash from the Estate of August Schnell, deceased’,

said it was not necessary to decide the question of the validity of the orders and the employment thereunder, and held that the trial court had not abused its discretion in fixing the amount.

County of Los Angeles v. Ford, 121 Cal.App.2d 407, 263 P.2d 638, 639, was mandate to compel the chairman of the board of supervisors to execute contracts pursuant to which the medical schools of the University of Southern California and of the College of Medical Evangelists would render medical and teaching services in the county hospital. By the contracts the schools were to provide medical specialists from their teaching staffs who would ‘provide effective on-the-job training and teaching facilities to those employees holding permanent civil service classifications.’ The schools had been rendering the services gratuitously but had notified the board of supervisors they could not continue to do so and would be forced to restrict or terminate the services unless paid. In order to adequately care for the indigent sick it was necessary to continue operating the county hospital as a teaching hospital. It could only be maintained as a teaching hospital as long as it remained associated with qualified medical schools. The contracts also provided that the university and the college, through their medical schools, would conduct at the hospital medical research projects authorized by the superintendent and furnish clinical and scientific equipment. On the authority of City and County of San Francisco v. Boyd, supra, 17 Cal.2d 606, 110 P.2d 1036, and Kennedy v. Ross, supra, 28 Cal.2d 569, 170 P.2d 904, the court held the contracts valid, saying, 121 Cal.App.2d at page 412, 263 P.2d at page 641:

‘Likewise here, the faculty members of the medical schools, who are to render the teaching and medical services required by the contracts, are not employees in the usual or ordinary sense. As hereinabove mentioned, the contracts provide that the University and the College medical faculties, the doctors and the students are independent contractors, and shall be responsible for the manner in which they perform the required services ‘after they have been advised by the Superintendent what activities they shall perform.’'

The test laid down in these cases for determining whether a contract of employment made by a public body or officer is valid, when there is a failure to comply with civil service requirements is: Are the services, whether temporary or permanent, of such a nature that they could be performed by one selected under the provisions of civil service? If the services could be so performed, then it is mandatory on the appointing power to proceed in accordance with the civil service provisions of the county charter.14 The test is not limited in its application to services or contracts for services which the governmental agency does or contracts to do directly to be paid for with its own funds out of its treasury.15

The authorities relied on by Robinson, all of which we have analyzed, do not negative this conclusion. In City and County of San Francisco v. Boyd16 and Kennedy v. Ross17 the professional services in question were specifically exempted from civil service. Burum v. State Compensation Ins. Fund18 and County of Los Angeles v. Ford19 held that the services in question in those cases were of such a nature that they could not be performed by one selected under civil service. In re Estate of Schnell20 is of no value because of the failure to consider the effect of article XI, section 7 1/2, of the Constitution and the civil service requirements of the Charter of the County of Los Angeles. Further, the court may well have held that the services there involved could not have been done by one selected under civil service.

Applying the test to the facts in the case at bar, we think it patent that the services performed by Robinson were of such a nature that they could have been performed by one selected under civil service. In fact, as we have stated, the trial court expressly found that the services performed by Robinson ‘could at all times have been adequately and satisfactorily performed by persons selected’ under civil service. The evidence does not permit any other conclusion. The constitutional provision and the charter leave no room for interpretation. All positions in the office of the Public Administrator other than those in the unclassified service are positions in the classified service. Robinson occupied a position in the office of the Public Administrator. He was not in the unclassified service. The county can and does employ persons to assist the Public Administrator in the performance of his duties, including the performance of extraordinary services.21 The doing of the tax work in the office of the Public Administrator was not of an intermittent, temporary, or special nature. Robinson was not employed temporarily to do the tax work in each particular estate. His work was continuous, permanent, and general. It went on for all of 11 years, during which time he examined about 15,000 estates and did tax work in 4,000 or 5,000. During all of that time he required the services of a full-time employee. The work was not of a confidential nature. It did not require such expert technical knowledge, experience or ability as could not have been done by one selected under civil service. The consequence is that the contract of employment of Robinson was void unless the Public Administrator, by virtue of section 902 of the Probate Code, is free to employ any one he may select as a tax expert.

Section 900 of the Probate Code provides that the administrator shall be allowed all necessary expenses in the care, management, and settlement of the estate. Probate Code, section 902, as amended in 1951, provides that the administrator may ‘employ or retain tax counsel, tax auditors, accountants, or other tax experts for the performance of any action which such persons, respectively, may lawfully perform in the computation, reporting, or making of tax returns, or in negotiations or litigation which may be necessary for the final determination and payment of taxes, and pay from the funds of the estate for such services.’ It also provides that allowances may be made as the court may deem just and reasonable for the preparation of estate, income, or other tax returns, or the adjustment or litigation or payment of said taxes.

Assuming that section 902 of the Probate Code authorizes the Public Administrator of the County of Los Angeles to employ a tax consultant for the performance of any action which the latter ‘may lawfully perform in the computation, reporting, or making of tax returns' without authorization from the board of supervisors, a question we need not decide,22 the power to employ a tax consultant does not authorize the Public Administrator to employ any one he may select. The power thus given is circumscribed by the civil service provisions of the county charter in the same manner as his power to employ assistants, deputies, clerks, attacheś, stenographers, etc., is limited. Section 902 is merely a grant of power. It does not and perhaps could not prescribe the mode by which the power shall be exercised by the Public Administrator of the County of Los Angeles. It does not say how a tax expert is to be employed; the charter does. Where the charter prescribes the only mode by which the power to contract shall be exercised, the mode is the measure of the power.23

The Public Administrator is primarily a public officer performing essentially a governmental function in administering estates and performing his other duties. He obtains letters of administration, not as an individual but as Public Administrator, by virtue of his office. His authority is not derived wholly from his appointment by the issuance of letters to him. His official character is not affected by the imposition of the duties devolved on him by the letters. The purpose of the law creating the office of Public Administrator was to provide a public officer, acting under his oath of office and official bond, who should be in a position at all times to administer estates where there is a failure of heirs or other persons competent to act. He represents the government and acts in a governmental capacity. The county has a material financial interest in estates handled by the Public Administrator. In performing services for the Public Administrator a tax expert is not acting for a private individual but is performing an official duty for the benefit of a county officer.24

The fact that the Public Administrator may pay a tax expert employed by him ‘from the funds of the estate for such services'25 does not militate against our conclusion. The court may make an allowance out of the estate to the Public Administrator for ‘the preparation of estate, inheritance, income, sales or other tax returns.'26 The Public Administrator is a salaried officer of the county. He ‘shall charge and collect such fees as are allowed by law.’27 The court must allow him the commissions prescribed by the Probate Code for his services in a particular estate out of that estate,28 which he may not retain but must pay into the county treasury.29 The County Counsel is a salaried officer of the county and is the attorney for the Public Administrator; nevertheless the court must allow him the fees prescribed by the Probate Code for services rendered the Public Administrator in a particular estate out of that estate,30 which he may not retain but must pay into the county treasury.31 There is nothing in the law which prohibits the Public Administrator from employing a tax consultant whose salary is paid by the county, nor is there anything in the law which prohibits the Public Administrator from collecting from a particular estate whatever allowance the court may make for the services of a tax consultant and paying the same into the county treasury. As said in Estate of Miller, 5 Cal.2d 588, at page 595, 55 P.2d 491, at page 494:

‘In the first place, as already pointed out, the public administrator is a public officer, performing essentially a governmental function in administering estates and performing his other duties. It, therefore, follows that when the county counsel acts as his attorney, the county counsel is not representing a private individual or carrying on a private law practice for the benefit of the county, but is performing an official duty for the benefit of a county officer. The question of fees is purely secondary. The state Legislature has seen fit to provide that the public administrator and his attorney shall receive the same fees provided for private administrators and attorneys. In the case of estates administered by the public administrator, the state Legislature has seen fit to require those benefiting from the estate to defray part of the cost of administering it by paying these fees. These fees then go to the county treasurer. * * *

‘[5 Cal.2d at page 596, 55 P.2d at page 495.] In addition to the foregoing, it must be remembered that the county has a material financial interest in estates handled by the public administrator. As already pointed out, under section 4300i of the Political Code, when the public administrator receives a salary in lieu of fees, all charges incurred by him in the administration of estates, except as limited in the section, are made county charges. * * *

‘[5 Cal.2d at page 597, 55 P.2d at page 495.] The matter of depositing in the county treasury the fees collected does not in any way affect the administration of estates. When the fees are paid to the public administrator and by him to the county counsel, the probate of the estate has been completed. After the fees are paid, they are not part of the assets of the estate. The fees are no different from those paid to a private attorney for the same purpose. Obviously, what happens to those fees after they are paid does not affect the estate being probated.’

‘[P]ay from the funds of the estate'32 means no more than that the expense of a tax expert is a proper expenditure to be made from the funds of the estate. If the expenditure is made in good faith and is proper the administrator may be credited therewith in the settlement of his accounts. And in the case of a tax expert employed by the Public Administrator, who must be a civil service employee paid by the county, whatever allowance is made in each estate must be made direct to the Public Administrator and by him paid into the county treasury. The sole question for the court in probate is the amount that shall be allowed the Public Administrator for the services of the tax expert from the funds of the estate. The question as to how the tax expert shall be paid and what amount he shall receive is an entirely different question, one over which the probate court, in the absence of an enabling statute, has no jurisdiction or concern; and dependent altogether for its determination in the County of Los Angeles on compliance with the charter.33

We hold that the former Public Administrator was without authority to enter into an independent contract with Robinson for the work to be performed, and that the contract he entered into was void.

Robinson contends that in any event he is entitled to recover in quantum meruit. The contention cannot be sustained. The contract was one of a public officer. It was beyond the scope of the power of the officer. It was expressly prohibited. The Charter of the County of Los Angeles prescribes the mode by which the Public Administrator may employ—appoint—a tax consultant. Compliance with the charter is mandatory. The mode prescribes the measure of the power. The adoption of the prescribed mode is a jurisdictional prerequisite to the exercise of the power to contract at all, and the power can be exercised in no other manner. If the prescribed mode is disregarded, the contract is void. Liability cannot arise by estoppel or ratification. The power of the Public Administrator of the County of Los Angeles is limited by the civil service provisions of the charter. A contract employing a tax consultant, made otherwise than as prescribed by the civil service provisions of the charter, is not binding or obligatory. No implied liability to pay on a quantum meruit for benefits received can exist where the prohibition of the charter against contracting in any other manner than as prescribed is disregarded.34 A person dealing with a public officer of the County of Los Angeles is chargeable with knowledge of the limitation of his authority. He is presumed to know the law with respect to the employment of persons under civil service, and acts at his peril. He, no less than the public officer, when he deals in a matter expressly provided for in the charter, is bound to see that the charter is complied with.35

Shaw v. City and County of San Francisco, 13 Cal.App. 547, 110 P. 149, is directly in point. The plaintiff in that case, in his own right and as assignee of 46 other persons, brought the action to recover the reasonable value of services rendered by the plaintiff and his several assignors as deputy registrars of voters of San Francisco under appointment made by resolution adopted by the board of election commissioners. The positions to which the plaintiff and his assignors were appointed had been duly included by the civil service commissioners within the civil service system, and appointments to such positions could be made only from the list of civil service eligibles for the class or grade to which the positions belonged. The plaintiff and his assignors were appointed in entire disregard of the civil service provisions of the charter. Judgment was for the plaintiff in the trial court. On review the plaintiff argued that since the services were performed and San Francisco had received the benefit thereof, he was entitled to recover the reasonable value of the services from San Francisco. Reversing, the court said, 13 Cal.App. at page 549, 110 P. at page 150:

‘To this doctrine we cannot subscribe. * * *

‘To permit a liability to be imposed upon the municipality to pay for services rendered under appointments made, as in this case, contrary to the explicit provisions of the law, and by the law declared to be void, would be to fritter away the entire scheme for civil service appointments contained in the charter. This we may not do. * * *

‘So, too, in the case at bar, the plaintiffs as well as the board of election commissioners, when the appointments were made, knew or ought to have known that they were made in contravention of the provisions of the charter, and were under the law void. Plaintiffs were bound to see that their appointments were made according to the requirements of the charter. If they neglected this, or chose to take the hazard of accepting a void appointment, they were mere volunteers, and suffer only what they should have anticipated. 36 ’

There may be apparent hardship in some cases by adhering strictly to charter provisions. An individual may suffer, but it is far better so than that an infraction of the law which the people have adopted be condoned. Courts, in giving effect to a statute such as the Charter of the County of Los Angeles, should avoid meeting hard cases by adopting rules which defeat the purpose and object of the people. We cannot let our feelings swerve us into bending the law to meet a hard case.

The judgment in each estate is reversed.

FOOTNOTES

1.  Const. art. XI, § 7 1/2.

2.  Const. art. XI, § 7 1/2, subds. 2, 4, 5.

3.  Const. art. XI, § 7 1/2.

4.  Stats.1913, p. 1484; Amended by Stats. 1923, p. 1659; Stats, 1929, p. 1985; Stats.1935, p. 2440; Stats.1939, p. 3145; Stats.1941, p. 3235; Stats.1943, p. 3211; Stats.1945, p. 2921; Stats.1947, p. 3361; Stats.1949, p. 2880; Stats.1953, p. 3781.

5.  Sec. 11(1).

6.  Sec. 11(3).

7.  Sec. 14.

8.  Sec. 33.

9.  Sec. 34.

10.  Sec. 51.

11.  Sec. 34(9).

12.  Mapes v. Williams, 2 Cal.2d 177, 39 P.2d 421; In re Estate of Miller, 5 Cal.2d 588, 592, 55 P.2d 491; Anderson v. Lewis, 29 Cal.App. 24, 26, 154 P. 287; County of Los Angeles v. Cline, 37 Cal.App. 607, 609, 174 P. 73; Pullen v. Garrison, 85 Cal.App. 706, 714, 259 P. 1021; Cornell v. Harris, 15 Cal.App.2d 144, 148–149, 59 P.2d 570; Lesem v. Getty, 23 Cal.App.2d 57, 60–61, 72 P.2d 183.

13.  The Public Administrator relies on State Compensation Ins. Fund v. Riley, 9 Cal.2d 126, 69 P.2d 985, 111 A.L.R. 1503; Stockburger v. Riley, 21 Cal.App.2d 165, 68 P.2d 741; and Allen v. State Board of Equalization, 43 Cal.App.2d 90, 110 P.2d 73. Robinson relies on City and County of San Francisco v. Boyd, 17 Cal.2d 606, 110 P.2d 1036; Kennedy v. Ross, 28 Cal.2d 569, 170 P.2d 904; Burum v. State Compensation Ins. Fund, 30 Cal.2d 575, 184 P.2d 505; In re Estate of Schnell, 82 Cal.App.2d 170, 185 P.2d 854; and County of Los Angeles v. Ford, 121 Cal.App.2d 407, 263 P.2d 638.

14.  State Compensation Ins. Fund v. Riley, 9 Cal.2d 126, 135, 69 P.2d 985, 111 A.L.R. 1503. See also 11 Op.Atty.Gen. 214; 12 Op.Atty.Gen. 308; 16 Op.Atty.gen. 194; 17 Op.Atty.Gen. 152; 22 Op.Atty.Gen. 192; 24 Op.Atty.Gen. 173.

15.  In State Compensation Ins. Fund v. Riley, 9 Cal.2d 126, 69 P.2d. 985, the funds involved were not public funds. See Ins.Code, §§ 11770–11800. Cf. City of Pasadena v. Estrin, 212 Cal. 231, 234–235, 298 P. 14.

16.  17 Cal.2d 606, 110 P.2d 1036.

17.  28 Cal.2d 569, 170 P.2d 904.

18.  30 Cal.2d 575, 184 P.2d 505.

19.  121 Cal.App.2d 407, 263 P.2d 638.

20.  82 Cal.App.2d 170, 185 P.2d 854.

21.  From 1946 through 1953 the Public Administrator of the County of Los Angeles had a staff of full-time employees which varied from 30 to 60, all employed under civil service. From 1951 to November 1953 part of the tax work was done by a county-employed civil service employee. Since November 6, 1953 all tax work has been done exclusively by county-employed civil service employees, except in a few estates in which the court had previously appointed Robinson or private attorneys.

22.  The question we need not decide is whether the Public Administrator of the County of Los Angeles may employ a tax consultant without prior authorization of the board of supervisors, in view of article XI, section 7 1/2, of the Constitution and the civil service provisions of the Charter of the County of Los Angeles.

23.  Miller v. McKinnon, 20 Cal.2d 83, 91, 124 P.2d 34, 140 A.L.R. 570.

24.  County of Los Angeles v. Kellogg, 146 Cal. 590, 593–594, 80 P. 861; In re Estate of Miller, 5 Cal.2d 588, 592, 594–596, 55 P.2d 491. Cf. Brown v. Overshiner, 38 Cal.2d 432, 240 P.2d 617; People v. McAtee, 35 Cal.App.2d 329, 332, 95 P.2d 471.

25.  Prob.Code, § 902.

26.  Prob.Code, §§ 902, 1142.

27.  Govt.Code, § 27441.

28.  Prob.Code, §§ 900, 901.

29.  County of Los Angeles v. Kellogg, 146 Cal. 590, 596, 80 P. 861.

30.  Prob.Code, §§ 910, 911.

31.  See In re Estate of Miller, 5 Cal.2d 588, 55 P.2d 491.

32.  Prob.Code, § 902.

33.  In the absence of enabling legislation, it is the rule that allowances for attorney's fees and expenses must run in favor of the party legally liable therefor and not to the person to whom the party may have become legally liable for services rendered. Prior to an enabling statute of 1905 an attorney's fee was paid from the funds of the estate but the allowance had to be made to the administrator and not to the attorney. Code Amdts.1880, ch. 85, § 97, p. 99; Stats.1905, ch. 577, p. 776; Prob.Code, § 911; Briggs v. Breen, 123 Cal. 657, 659, 56 P. 633, 886; In re Estate of Kruger, 143 Cal. 141, 143–146, 76 P. 891; In re Estate of Hite, 155 Cal. 448, 451, 101 P. 448; In re Estate of Pailhe, 114 Cal.App.2d 658, 659, 251 P.2d 76. Prior to an enabling statute of 1909 the court was without authority to order payment to a real estate broker for his services. Allowance, if any, was made to the administrator. Stats.1909, ch. 150, p. 251; Prob.Code, § 760; In re Estate of Willard, 139 Cal. 501, 73 P. 240, 64 L.R.A. 554. The probate court may not order payment direct to a reporter of his fee for a transcript on appeal in an action in which an administrator is a party. If allowed at all, it must be to the administrator. In re Estate of Pailhe, 114 Cal.App.2d 658, 665, 251 P.2d 76. Prior to an enabling statute of 1951 the court was without authority to order attorney's fees for services rendered a guardian of a minor of incompetent paid direct to the attorney. The allowance was to the guardian. Stats.1951, ch. 128, § 2, p. 385; Prob.Code, § 1556.1; McKee v. Hunt, 142 Cal. 526, 77 P. 1103; Stafford v. Superior Court, 1 Cal.2d 321, 324, 34 P.2d 998; Garra v. Superior Court, 58 Cal.App.2d 588, 137 P.2d 31. Attorney's fees allowed in a partition proceeding must be awarded the party, not the attorney. Code Civ.Proc. § 796; Chavez v. Scully, 62 Cal.App. 6, 216 P. 46. An allowance for the services of an attorney for a receiver must be made to the receiver, not to the attorney. Sullivan v. Gage, 145 Cal. 759, 79 P. 537. Prior to an enabling statute of 1937 the court was without authority to order attorney's fees in a divorce action paid direct to the attorney. The award was to the party employing the attorney. Stats.1937, ch. 183, p. 479; Civ.Code, § 137.5; Keck v. Keck, 219 Cal. 316, 322, 26 P.2d 300.

34.  Miller v. McKinnon, 20 Cal.2d 83, 124 P.2d 34, 140 A.L.R. 570; City of Pasadena v. Estrin, 212 Cal. 231, 298 P. 14; Reams v. Cooley, 171 Cal. 150, 152 P. 293; Daly v. San Francisco, 72 Cal. 154, 13 P. 321; Zottman v. City and County of San Francisco, 20 Cal. 96; Bear River etc. Corp. v. County of Placer County, 118 Cal.App.2d 684, 258 P.2d 543; Williams Bros. & Haas, Inc., v. City & County of San Francisco, 53 Cal.App.2d 415, 128 P.2d 56; Tax Factors, Inc., v. County of Marin, 20 Cal.App.2d 79, 66 P.2d 666; Los Angeles Warehouse Co. v. County of Los Angeles, 139 Cal.App. 368, 33 P.2d 1058; Nash v. City of Los Angeles, 78 Cal.App. 516, 248 P. 689; Gamewell Fire Alarm Tel Co. v. City of Los Angeles, 45 Cal.App. 149, 187 P. 163; Shaw v. City and County of San Francisco, 13 Cal.App. 547, 110 P. 149; Fountain v. City of Sacramento, 1 Cal.App. 461, 82 P. 637; 18 Cal.Jur. 1002, p. 273; annotations, 84 A.L.R. 936; 93 A.L.R. 258; comment 4 Cal.L.Rev. 255.

35.  Miller v. McKinnon, 20 Cal.2d 83, 89, 124 P.2d 34, 140 A.L.R. 570; Bear River etc. Corp. v. County of Placer, 118 Cal.App.2d 684, 690, 258 P.2d 543; Fountain v. City of Sacramento, 1 Cal.App. 461, 463, 83 P. 637.

36.  To the same effect, Nash v. City of Los Angeles, 78 Cal.App. 516, 248 P. 689.

VALLEÉ, Justice.

SHINN, P. J., and PARKER WOOD, J., concur.

Copied to clipboard