The opinion of the department contains no discussion of the merits of the particular claim upon which this action is based, and makes no attempt to discriminate between the services rendered by the plaintiff and any other kind of services to the board of railroad commissioners, or any other kind of expense whatsoever incurred by them in the performance of their duties. The decision, therefore, cannot be understood otherwise than as holding that the board of railroad commissioners is absolutely dependent upon the legislature for the funds necessary to enable them to discharge their duties; or, in other words, that they have no implied power to incur any expense, however necessary, which will impose a legal obligation upon the state. The result of this doctrine is, that if the legislature had never passed any law providing for its necessary expenses, or if the existing laws should be repealed, the board could do nothing — nothing, at least, except what could be done without incurring expense. And the same doctrine logically applied would, in the same contingency, shut up this court — for we are no more truly a constitutional body than the railroad commission. If they have no implied power to incur expenses that will bind the state, neither have we. I cannot concur in this view. The railroad commission, having been created by the constitution and endowed with important powers to be exercised for the public benefit, has the right to incur such expenses as are *Page 389 strictly necessary to enable it to perform its constitutional duties. In any action against the state to recover compensation for services rendered to the commission, it would be a judicial question whether the particular services were necessary; but if they were so found, it would be the duty of the court to give judgment accordingly. The fact that the legislature could at least render the judgment ineffectual by refusing to make an appropriation to pay it does not affect the question. The legislature can always refuse to make an appropriation to pay any judgment against the state, however just and valid it may be; but the question for us is not whether a judgment is going to be paid, but whether it ought to be given.
As to the case of Lewis v. Colgan, 115 Cal. 529, cited in the opinion of the court, what was there said touching the employment of the plaintiff by a board created by law and endowed with no powers except such as were conferred by act of legislature, has no application to the acts of a board created by the organic law, and therefore invested with power to incur expenses strictly essential to the discharge of its constitutional duties.
If these views are correct, the question to be decided in this case — i.e. the question whether the services performed by the plaintiff were necessary to enable the board of railroad commissioners to perform its constitutional duty — has not been decided, and for that reason there should be a rehearing.