Goodson v. Board of Health

Grant, J. (after stating the facts). 1. Mandamus is not the proper remedy. The proper remedy is by a suit [348] at law. Inasmuch as this point' is not raised, we will dispose of the case upon its merits. 2. The authority for the appointment of relator is found in section 382 of the charter of 1893. This section gives the appointing power to the board of health alone, and the power “to prescribe the powers and duties and determine the annual salary and compensation of each and all herein referred to.” There was no contract between relator and respondent to perform these extra services, unless one is to be implied from the fact that he rendered the services and that the board had knowledge thereof. He presented no itemized bill to the old board. During the entire term of his employment he was paid semi-monthly, and gave receipts in full for his services. He testified that he was employed by the health officer and secretary of the board as clerk of the department of contagious diseases at a salary of $100 per month, and that his hours of labor were to be from 8 to 4, with one hour to himself at noon. Not only did relator not present any claim to the board, but he never talked with any members thereof in regard to this extra work, although he knew that the board alone had the authority to employ him. He was at one time paid $100 for extra services. We give his own version of the circumstances under which this was paid: “Q. You didn’t present an accurate account at that time? “A. No, sir. He said it was not necessary. He said, ‘ Just make a claim there.’ “Q. Just make a claim generally, and let it go at that? “A. Just make a claim for a certain amount, and, if there was any more coming after that, I could make a claim for that later on. “ Q. That is, you were going to make two bites at the cherry of what was due you ? “A. If you want to put it that way. “Q. That is, you expected to get part of it that was already due you, and then at some future time make the claim over again for back pay? “A. I expected to get a part that was due, and the balance remaining I expected to get later. [349] “Q. What part did you expect to get? “Ü. The balance that was due me. “Q. But the first time we are talking about? “A. I expected to get a reasonable amount that was due me for services rendered up to that date. ‘ ‘ Q. But you got $100 ? “A. Yes, sir. “Q. What part of the services was that intended to cover ? - “A. To cover some of the services that had already ■ been rendered. ilQ. What part? “A. They did not designate. “Q. How was the board ever to know when it had got through paying you? “A. I didn’t ask the board that question. “Q. Could you tell now, do you think? “A. I don’t know that I would be apt to tell. “Q. In presenting your claim, did you tell the board that that was only part of it ? “A. I told Dr. McLeod. “Q. But you didn’t tell the board ? “A. No, sir. “Q. You had no relations whatever with the board ? “A. No, sir; he represented the board to me.” From this testimony it appears that relator presented at that time a bill for extra services, which was allowed and paid, and for which he gave a receipt. This was a settlement of all his claims prior to that time. He neither did nor said anything to indicate to the board that this was to be a partial payment upon his account, or that he had any other claim. A large part of his claim — about one-half — was for services rendered prior to the allowance of that $100. Neither did he make any claim to the board for extra services when he was paid semi-monthly. Bartlett v. Railway Co., 82 Mich. 658. 3. The health commissioner was not invested with the authority to fix relator’s hours of' labor, to determine how many hours should constitute a day’s work, and bind the city to pay therefor. If relator was dissatisfied with his employment and hours of labor and compensation, he should have applied to the board to fix them. The charter [350] gives the exclusive right to the board of health to fix the compensation of its employes. The board has twice acted upon the relator’s compensation for this extra work. Its action is conclusive. He entered upon the employment with full knowledge of this power of the board. The court should have denied the writ. Reversed, and writ of mandamus denied. The other Justices concurred.