Welch v. Emerson

• Decision Date: 19 May 1910
• Parties: WELCH et al. v. EMERSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 129

91 N.E. 1021

WELCH et al. v. EMERSON et al.

Supreme Judicial Court of Massachusetts, Essex.

May 19, 1910

COUNSEL

Pierce & Wadsworth, for petitioners.

Sweeney & Cox, for respondents.

OPINION

BRALEY J.

The town of Methuen at the annual meeting held March 2, 1908 having voted 'that the salaries of the selectmen overseers of the poor, assessors and board of health be $1,200 a year or $400 for each individual,' this petition is brought under Rev. Laws, c. 25, § 100, by 10 and more of the inhabitants and taxpayers, to enjoin payment from the treasury of any charges for services by the respondents who held these offices, in excess of this amount, and to recover back for the use of the town the sums previously paid to each of them in alleged violation of the vote. By Rev. Laws, c 25, § 95, as town officers are to receive such compensation as the town may determine the respondents when acting, as selectmen in the management of the town's prudential affairs were bound by the statute, and could not lawfully authorize the treasurer by their warrant or order under section 72 of this chapter, to pay for their services as selectmen, overseers of the poor and members of the board of health a larger salary than the town voted. If the remuneration attached to these offices was considered inadequate, the incumbents were not obliged to serve, and could have resigned, yet having been chosen assessors under the tenure prescribed by St. 1907, c. 579, they acted in the exercise of the functions of this office as public officers, whose powers and duties are defined, and controlled wholly by statute. Walcott v. Swampscott, 1 Allen, 570; Alger v. Easton, 119 Mass. 77. As was said by Endicott, J., in Walker v. Cook, 129 Mass. 577, 578: 'They are not in any sense the agents or servants of the town, and the town by the election of assessors enters into no contract with them for the payment of their services.' But if this distinction is recognized by Rev. Laws, c. 12, § 99, which provides that 'each assessor shall be paid * * * by his town two dollars and a half for every whole day in which he is employed in that service,' this section also authorizes 'such additional compensation as the * * * town may allow.' It being within the power of the town to increase the statutory compensation, the assessors where such action has been taken are entitled to the salary named, even if their services, as computed under the statute,...