McFarland v. Gordon

• Decision Date: 03 March 1898
• Citation: McFarland v. Gordon, 70 Vt. 455, 41 A. 507 (Vt. 1898)
• Parties: GEORGE E. McFARLAND v. JOHN W. GORDON
• Court: Vermont Supreme Court

41 A. 507

70 Vt. 455

GEORGE E. McFARLAND v. JOHN W. GORDON

Supreme Court of Vermont

March 3, 1898

January Term, 1898.

PETITION for mandamus. Heard at the January Term, 1898, of the supreme court sitting for the County of Washington. Dismissed.

Petition dismissed with costs.

George T. Swasey and George W. Wing, for the petitioner.

John W. Gordon and W. W. Lapoint, for the petitionee.

Present TAFT, ROWELL, MUNSON, START and THOMPSON, JJ.

OPINION

TAFT

The words, "towns" and "selectmen," include cities and aldermen, and the law applicable to the inhabitants and officers of towns is applicable to the inhabitants and similar officers of all municipal corporations. V. S. 19, Acts 1896, No. 148, § 4. Selectmen of towns and aldermen of cities are similar officers. In regard to town officers, it was early held "if no law of the state fixed their compensation or pay, their services must be gratuitous." Boyden v. Brookline, 8 Vt. 284. And by statute V.S. 3060, no claim for personal services as a town officer shall be allowed except when compensation is fixed by law or by vote of the town. The right of town officers to compensation for their official services is regulated by statute. Barnes v. Bakersfield, 57 Vt. 375. Every city charter in this State, as originally passed, save that of Vergennes, in 1788, contains a clause prohibiting the payment to the aldermen of any compensation for their official services. This is true even of the charter granted to but not accepted by the city of Burlington. Acts 1852, No. 85, § 2.

Except the Barre charter, but one other, that of Burlington, has been changed in this respect, and this change may be well kept in mind in the consideration of the question before us. Acts 1896, No. 148, § 24, provides that aldermen in that city, "shall receive such compensation for their official services as the legal voters of the city, at any meeting duly warned for that purpose, shall direct." This act is significant in recognition of the fact that unless specific provision is made by law for the payment of city officials, the power to pay or not to pay them is in the legal voters. There is no authority in the general law for the payment of the petitioner and his colleagues, save in the voters of the city, and this case must turn upon the question whether there is any provision granting such authority in the Barre charter. In the original charter, granted in 1894, the last clause in § 5 reads "No member of the board of aldermen shall receive any compensation for official services." In 1896 this section was amended by striking out the clause, and inserting in lieu thereof, "Members of the board of aldermen may receive compensation for actual services rendered, not to exceed thirty cents per hour." The precise question before us, is, under this clause in the charter, in whom is the power vested to determine whether the aldermen shall receive compensation, and, if so, to determine the rate per hour. In Acts 1894, No. 165, § 5, and the amended Act in 189...