Brophy v. Marble

118 Mass. 548, 1875 Mass. LEXIS 431

• Court: Massachusetts Supreme Judicial Court
• Decided: October 22, 1875
• Status: Published

Opinion

Gray, C. J.

The St. of 1869, c. 152, § 1, authorized the mayor and aldermen to appoint one or more persons to be inspectors of petroleum, and to “ fix their compensation, to be paid by persons requiring their services under the provisions of this statute.” This authorizes the exaction of fees from such persons, only for the purpose of compensating the inspector, and not for the benefit of the city treasury — differing in this respect from the statutes under which Boston v. Schaffer, 9 Pick. 415, was decided.

The order of the mayor and aldermen of June, 1872, authorizing the inspector to-collect certain fees from such persons, conformed to the statute. But the orders of March, 1873, and January, 1874, appointing the first assistant engineer to be inspector of petroleum, and giving him a salary of $1200, and requiring him to pay all fees into the city treasury, by thus prescribing a new way of compensating the inspector, necessarily superseded and repealed the former order, so far as his compensation was concerned; and as the mayor and aldermen had no power to exact fees for any other purpose, the provision for the payment of fees into the city treasury was void, and the inspector is not authorized by any order of the mayor and aldermen to recover fees from the defendants for services since the order of March, 1873, took effect.

Being a public officer for whose compensation provision is made by law, the plaintiff cannot recover anything for official services except as so provided, even if he performed such services at the defendants’ request. Andrews v United States, 2 Story, 202. Converse v. United States, 21 How. 463. Hatch v. Mann, It Wend. 44. Evans v Trenton, 4 Zab. 764. Pool v. Boston, 5 Cush. 219. IVety Maven Northampton Co. v. Hayden, 117 Mass. 433. Gen. Sts. c. 163, § 22. Exceptions overruled.