Cook v. Overseers of Pub. Welfare in Boston

• Decision Date: 07 July 1939
• Citation: 303 Mass. 544,22 N.E.2d 189
• Parties: COOK v. OVERSEERS OF PUBLIC WELFARE IN CITY OF BOSTON. SAME v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 544

22 N.E.2d 189

COOK

v.OVERSEERS OF PUBLIC WELFARE IN CITY OF BOSTON.

SAME

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

July 7, 1939.

Report from Superior Court, Suffolk County; J. C. Donnelly, Judge.

Actions by Harry F. Cook against Overseers of the Public Welfare in the City of Boston, and by the same plaintiff against the City of Boston, to recover wages claimed to be due plaintiff. On report from the Superior Court.

Judgment for defendant in each case.

H. L. Barrett, of Boston, for plaintiff.

R. H. Hopkins, Asst. Corp. Counsel, of Boston, for defendants.

LUMMUS, Justice.

G.L. (Ter.Ed.) c. 117, § 2, provides that ‘the board of public welfare shall have the care and oversight of all such poor and indigent persons [i. e. those lawfully settled in the town and standing in need of relief and support] so long as they remain at the charge of their respective towns.’ By c. 4, § 7(34), the word town shall include city. Members of such a board are public officers.¹Orlando v. Brockton, Mass, 3 N.E.2d 794;Everett v. Canton, Mass., 21 N.E.2d 269. By the revised ordinances of Boston (1925) c. 26, § 1, ‘the public welfare department shall be under the charge of the overseers of the public welfare.’

But ‘The Overseers of the Public Welfare in the City of Boston’ had another capacity. That was the name of a corporation,² consisting of the persons who for the time being hold the office, created ‘to receive, manage lease, let and dispose of * * *, according to their best discretion, to and for the use and benefit of the poor of’ Boston, whatever money and property may have been or may be ‘given, granted, bequeathed or devised, by any way or means whatsoever, to the poor of the same town, or to their use.’

The principal office of the overseers of the public welfare in the city of Boston, whether as department or as corporation, was in charge of one Dowling, who had authority from the board of overseers to hire employees with the approval of the board. Dowling, after consulting the board, wrote the plaintff on October 30, 1934, that Dowling had been authorized to engage the plaintiff as an expert for the employment division at a salary of $40 a week. The stationery on which Dowling wrote was used for all the correspondence of the board, as a department and as a corporation. It bore the words ‘Overseers of the Public Welfare in the City of Boston,’ and in the upper left hand corner the corporate seal of the corporation. The board of overseers formally voted approval of the plaintiff's appointment on November 7, 1934. The plaintiff began work on November 5, 1934, and worked regularly until September 13, 1936, when he resigned. But his name was removed from the payroll on April 5, 1936, and these actions are brought to recover $40 a week as salary or wages from April 5, 1936, to September 13, 1936. The plaintiff's work was in supervising the obtaining of private employment for recipients of welfare relief, thus relieving the city of the expense of welfare relief. The plaintiff had nothing to do with the administration of trust funds held by the overseers as a corporation. Money for welfare relief was furnished by the city, but the plaintiff had nothing to do with its distribution.

The reason why the plaintiff's name was taken off the payroll on April 5, 1936, was that the authorization of his provisional temporary appointment by the civil service commissioner of the Commonwealth expired on that day. He had passed the civil service examination for permanent appointment as supervisor of employment, but no appointment was made. He continued to work upon the assurance of Dowling that he would be paid, but he knew that his name was not on the payroll and that the mayor had not approved his employment after April 5, 1936. The board of overseers approved his continued employment.

The judge properly found, and perhaps could even have ruled, that the plaintiff was not employed by the defendant corporation ‘The Overseers of the Public Welfare in the City of Boston.’ The work of the plaintiff had nothing to do with its corporate purposes.

As a department of the city, the board of overseers were restricted by the revised ordinances of Boston (1925) c. 3, § 12, which provided that ‘before any increase shall be made * * * in the number of subordinates, a report thereof shall be sent to the mayor, and no such increase shall take effect until approved by the mayor, in a writing filed with the city auditor.’ So far as appears, the original employment of the plaintiff was in violation of this provision, although later the mayor approved it until...