O'Neill v. County of Worcester

Sheldon, J. 1. Ho exception lies to the refusal of the judge to make particular findings of fact. Were this not so, the judge was not bound, even upon the plaintiff’s testimony and the evidence furnished by the entries in his books, to make the findings asked for, and the findings made were fully warranted by the testimony. 2. It was required by R. L. c. 102, § 143, that the plaintiff’s bill should be approved by the mayor of his city and should be paid from a certain fund. This approval was a condition precedent to payment. Without it the county treasurer had no authority to pay the bill It was the only means provided to inform the treasurer that the services had been performed and that the bill was a proper one. In this respect the case is stronger than was presented in Haverhill v. Marlborough, 187 Mass. 150, 156. And it is too plain for argument that an approval by one who was not mayor, although he had held that office in a former year when it was claimed that the services had been rendered, was not the approval required by the statute. 3. Under the same statute, as amended by St. 1907, c. 240, and St. 1908, c. 182, it was provided that the plaintiff’s term of office should be for one year or until the appointment and qualification of his successor, and that his pay should be “ the same wages per diem during the term of [his] employment ” as were paid to the police officers of the city. The change in the same statute from “ office ” to “ employment ” must be deemed to have [378] been made advisedly. His wages were to be by the day during the term, not of his office, but of his employment. There is a manifest reason- for this in the nature of the' services which he was to render. When, as in this case, he actually served only eighty-four days in the year, we cannot suppose that it was intended to pay him for every day, including Sundays and holidays. If this were so, there would be no occasion for requiring a bill for services and its approval by the mayor, or for making the pay a per diem one. Indeed our view seems to have been that, of the plaintiff, for he based his demand on the claim, which however he failed to maintain on the evidence, that he actually had worked on every day except while he was absent by the permission of the mayor. We are clearly of opinion that he was entitled to recover only for the time during which he was actually employed in rendering services. St. 1911, c. 391, passed after the bringing of this action, and in terms limiting the compensation of dog officers to the time of their actual employment, seems to us to be rather a declaratory act than an indication that previously the effect of the statute was different. The plaintiff’s requests for rulings were rightly dealt with. Exceptions overruled.