Worcester morning daily spy. (Worcester, Mass.) 1888-1898, 1898-03-12
WILL LOSE SALARY.
Capt. j. H. Madden's Claim
Cannot Be Paid.
City Solicitor Decides That No Money
Can Be Paid from the City Treasury
Upon Such Claim.

City Solicitor Rugg has handed down
a decision on the claim of Captain ]. H.
Madden Of Hose 2, against the CITY for
$lS;25,''the amount of his salary while a
member of the city government. from
Oct. 20 to Jan. 80, to Chairman Potter Of
the committee on claims, in which he de-
eides that mo money can be paid from
the city treasury upon this form of
claim. % 'iF
fHhe facts in reference to this claim ."
says the city solicitor, $50 far as I am
INFORMED, are that during the year 1897
Mr.. Madden was duly serving as a mem
per of'the common council of the city of
worcester. his term expiring the first
Monday of January, 1898; that sometime
curing the year 1897, he served as cam
tain Of one of the fire companies of the
city, by appointment of the chief en-
glneef OF the fire department or the
board of engineers. He was not, how
ever, duly appointed as member of the
hre department in accordance with the
terms OF the ordinances-that is, his an
polntment was not confirmed by the
board of aldermen nor sent to the hoard
of aldermen for confirmation during the
year 1885, l assume, however, that he
rendered valuable service to the city.
members Of the fire department are
of1eefS of the city, charged with the per-
rormance of public duties or services,
and are not servants or agents, strictly
speaking, in the employ of the city. So
that the relation which exists between
q member of the fire department, duly
appointed and legally holding his office,
Is not that of contract, but that peculiar
connection growing out of the existence
Of the official capacity.
While Mr.. Madden was a member of
the city council and during the term
for which he was chosen or elected, both
by general law and under the charter of
the city, he was prohibited from holding
any other office or position the salary
or compensation for which was pay
able from the city treasury Therefore,
during the year 1897 so far as his rela-
ton to the city was concerned, he could
not be legally regarded as holding any
office in the fire department of the city
nor as being member of the depart
ment. | do not attempt to decide, as it
is not necessary to determine for this
purpose, what effect in other respects
his acts as a de facto officer would have.
AS between himself and the city, he was
at best a person performing services in
the fire department, but not a member
of it. These being facts, the case seems
to me to come within the rule laid down
in GFeenough VS. Wakefield, This was a
case where the town of Wakefield, hav-
ing fire department duly established,
voted to appropriate money for paying
members of a private fire organization
for services, rendered as firemen, and it
was held that such payment was unau-
thorized, the ground of the decision be-
ing that the law having provided a
means of.sustaining the fire department,
the municipality had no right to go out
side this legally constituted plan for
maintaining it's fire department and to
vote compensation to those who might
have rendered services at fires, but not
by virtue of an employment which was
authorized by law.
Mr. Madden, while a member of the |
city council, could not make any spe- |
cial contract with the city for rendering |
his services to the city, not as a men,
Der of the fire department, but as a |
servant or agent for special duty, with !
out being anlenable to the provisions |
of the public statutes, which prohibits |
under penalty a member of either |
branch of the city council being inter
ested many contract made by author
ity derived from the city council. 1t |
would seem, therefore, that all SER
vices of a personal nature rendered by |
a member of the city council to the city
during his term of office, whether in |
the direct line of his duty as a member
of the city council or for other depart |
ments deriving authority from the city |
council must be without compensation. |
"In certain eases municipalities have
the right to pay money from the city |
treasury for purposes which do not |
grow out of legal obligations and which |
rest upon purely moral considerations. |
For example, a municipality has a |
right to grant extra compensation to
one who has performed valuable SER
vice to it on the ground that by reason |
of fidelity or otherwise the city or town
has received a benefit, and as matter
of justice and equity, apart from legal
obligation. it would be proper to reim- |
burse him!
'In all cases in this commonwealth |
where it has been held that the munich