Cook v. County of Norfolk

201 Mass. 257 | Mass. | 1909

Knowlton, C. J.

The plaintiff was appointed the second assistant clerk of the courts for the county of Norfolk, under the' R. L. c. 165, § 7, and he brings this action under the St. 1904, c. 451, § 6, to recover for travelling expenses while performing the duties of the office.

This last statute was enacted to establish the salaries of clerks and assistant clerks of courts in all parts of the Commonwealth, and, so far as possible, to equalize them in reference to the population of the respective counties and the difficulty and importance of the duties performed by them respectively. The method adopted is by prescribing the amount of salary for each of these officers, and by making a provision for travelling expenses necessarily incurred by reason of the place in which the courts hold their sessions. The Legislature recognized the fact that, in every county in the State, there is an office of the clerk of the courts where the records are kept, and where the clerks and assistant clerks are expected to be regularly in daily attendance, unless called away to attend upon a session of the court in another place. They also recognized the fact that in several of the larger counties there are prescribed sessions of the courts, not only at the county seat, but at other places in the county. By the R. L. c. 165, § 37, it is provided that the annual salaries of clerks shall be in full for all their services, except for such extra clerical assistance as is allowed under the provisions of the following section. It is plain, therefore, that a clerk of the court is not entitled to an allowance for travelling expenses to and from his office, in the performance of his daily duties. Ordinarily it is expected that he will have his residence in such convenient proximity to the place where he is required to be in daily attendance that he will not expend any considerable sums for travelling to and from Ms office. But if, for any reason, he chooses to live at a distance from his office, the law leaves him to go back and forth at his own expense. In one case only, that of the assistant clerk of Bristol County, is there an exception to this rule. St. 1904, c. 451, § 3. The only general provision for travelling expenses is in the St. 1904, c. 451, § 6, and it covers only- those necessarily incurred when attending sessions of courts out of the cities or towns in which the clerks severally reside. This means necessarily incurred in connection with attendance upon such sessions of courts. But when the session of the court is in the place where the office of the clerk of courts is established there are no such expenses necessarily incurred. The performance of the clerk’s regular official duties brings him to his office daily without an allowance for travelling expenses. The holding of a session of the court there does not make it necessary for him to incur any expenses. Doubtless the Legislature, in using the words “ out of the cities or towns in which they severally reside,” assumed that the language was equivalent to “ out of the cities or towns in which the clerks’ offices are established, and at which they are to be regularly in attendance.” As applied to most of the counties in the Commonwealth such an assumption would be correct. The intention of the statute is to provide for travelling expenses made necessary by attendance at the session of a court, as distinguished from those incurred in performing the duties of attendance at the clerk’s office.

There is another reason why the plaintiff cannot prevail in this suit. The St. 1904, c. 451, prescribes the salaries to be paid to the officers named therein. The salaries of assistant clerks are given in § 3. No salary is provided for a second assistant clerk in the county of Norfolk, but only a salary for the first assistant clerk. The provision in regard to travelling expenses has refer-, en'ce only to an allowance in addition to the prescribed salary, for the persons whose salaries are established. It is not applicable to a person whose office is not among those for which there is a stated salary.

The appointment of the plaintiff under the R. L. c. 165, §. 7, entitles Mm to compensation only under § 38 of this chapter, as one rendering extra clerical assistance, to whom such compensation shall be paid as the county commissioners allow, in a writing signed by them. He is not entitled to receive anything under the St. 1904, c. 451, but the subject of his compensation is exclusively for the county commissioners.

Judgment for the defendant.