Two questions are presented upon this appeal. First, whether the Council of the city of Long Beach had authority to fix the compensation to be paid to the City Engineer in the manner it attempted to do by its resolution and, second, whether the plaintiff has established that, under the terms of the resolution, he is entitled to further payments.
As Judge HUBBS has pointed out, the plaintiff is an officer not an employee of the city and can recover no compensation for services rendered other than the salary, or compensation, which is affixed by law to his office. There the public policy of the State is embodied in article III, section 28, of the Constitution of the State, which provides that "the Legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor." The resolution of the Council attempted to fix the compensation of the City Engineer and the compensation to which the plaintiff is entitled must be measured by that resolution. The Mayor, and even the members of the Council, had no authority to enter into a contract with the plaintiff to perform any services as City Engineer, for compensation, other than that attached to the office. The resignation of the plaintiff could not be accepted subject to a proviso that the plaintiff should continue to perform some of the duties of his office and receive for such services the compensation which he would have received if he had continued to hold the office of City Engineer. The resolution of the Common Council would, I agree, be invalid if, under a proper construction, it authorized the payment to the plaintiff *Page 91 of the compensation which has been awarded to him. In my opinion the resolution is not, however, open to such construction and I disagree with the majority opinion only in so far as it challenges the authority of the Council to fix compensation of the City Engineer, "at the rate of 5% of the total cost of the various improvements or work supervised by him, which compensation shall be paid as follows: (a) 20% thereof upon completion of preliminary studies, which 20% shall be computed upon the reasonable estimated cost of such work or improvements; (b) 40% upon the completion of specifications, and general working drawings, said 40% likewise to be computed upon the reasonable estimated cost of such work or improvements; (c) 40% from time to time as the work progresses, and as said City Engineer shall certify as to the progress of the work."
It is to be noted that the compensation there is measured by a percentage of the "total cost of the various improvements or work supervised by him." A "public improvement" can be initiated only by the Council itself and the City Engineer can supervise no work which is not undertaken by the city in accordance with the provisions of the charter. Therefore, under no fair construction of the resolution can the City Engineer claim compensation for the preparation of plans or specifications where no public improvement or public work, supervised by him, has been undertaken by the city of Long Beach. The provision of the resolution that part of the compensation of the City Engineer shall be paid to him "upon completion of preliminary studies" and another part "upon the completion of specifications" merely fixes the time for payment of compensation earned. It does not enlarge the measure of the compensation and, for the preparation of plans or specifications, except in connection with a public improvement or work supervised by the City Engineer, he is entitled to no compensation. When the resolution is so construed, the plaintiff has failed to establish his cause of action, but under that construction — and no *Page 92 other construction is permissible — I cannot see any valid ground for challenge of the power of the Common Council to adopt the resolution.
It is said that such a resolution would contravene the public policy of the State. Except in so far as the public policy of the State is embodied in constitutional provisions, limiting the legislative power, the Legislature is the supreme judge of the public policy of the State. No statute adopted by the Legislature which does not transcend the constitutional limitations upon the legislative power may be set aside because the court does not believe that the statute accords with public policy. The validity of the resolution of the Council depends solely upon the question of whether the Legislature has conferred upon the Council power to fix the compensation of a public officer in that manner.
The charter of the city of Long Beach provides for a salary fixed in advance at a specified sum in the case of all officers of the city except the Corporation Counsel and the City Engineer. There the charter allows scope to the discretion of the Council. It expressly provides that the City Engineer shall receive such compensation for services rendered as may be approved by the Council. There is no express limitation there upon the discretion of the Council to approve compensation measured by the work which may be required in any year of the City Engineer, and no such limitation can be read into the statute by implication, at least unless such a measure of compensation to be paid would be clearly unreasonable or a cloak for the violation of other provisions of law. The burden of service of a City Engineer of Long Beach, or, indeed, of any officer of a small city where the duties require professional skill, may vary greatly with the nature of the work required of such officer in any particular year. Ordinarily an engineer receives compensation for his professional services measured by the cost of the work which he supervises or for which he prepares plans. It *Page 93 would be unreasonable, I think, to expect a small city to maintain a permanent department which would be able to perform the work ordinarily performed by an engineer and his staff and which would be adequate to take care of large projects or improvements. Variations in the amount of work to be done must reasonably require flexibility in provisions for compensation for such work, and also a practical solution of the problem of maintaining a staff adequate to perform such work expeditiously and efficiently. Then it would seem wise that a small city should have power to fix the compensation of its City Engineer at a sum which is measured in the same manner as such compensation of other engineers, performing similar work, would be measured, and out of such compensation to bear the expense of such assistants as may be necessary for the performance of the work.
It is said that such a provision would be an easy method of evading the provisions of the Constitution and the Civil Service Law in regard to the appointment of officers and employees in the civil service. When not used for a legitimate purpose, the courts will doubtless find no difficulty in curbing such practice. A decision that even when used for a legitimate purpose the practice is illegal will compel small cities either to maintain a permanent staff which will be idle at times and at other times compelled to work at inefficient speed, or to contract for the services which this plaintiff has performed instead of appointing a public officer to perform the work There is nothing in the statute that indicates that the Legislature intended to impose these alternatives upon the city of Long Beach.
We are told that compensation so fixed in effect "enables the incumbent of the office to fix the amount which he shall receive. The more he can induce the city to spend, the larger his compensation will be." In truth, the statute gives the City Engineer no power to determine what work shall be undertaken. Discretion there rests *Page 94 solely with the Council, and the influence of the City Engineer to induce the Council to spend more money than is wise is no greater than the influence which an engineer, retained by contract, would be able to exercise. In any event, such considerations concern only the wisdom of the Council, not its power.
CRANE, Ch. J., O'BRIEN and LOUGHRAN, JJ., concur with HUBBS, J.; LEHMAN, J., concurs in result in separate opinion in which CROUCH and FINCH, JJ., concur.
Judgments reversed, etc.