Malcolm v. City of Boston

Morton, J. George F. Malcolm was appointed a police officer of the city of Boston in December, 1873, and continued in that office till the 5th day of January, 1893, when he was retired on his own petition with a pension. The action as brought was for back pay for various periods beginning with April, 1887, and ending with January 5, 1893, but at the trial all claim for back pay before July, 1890, was abandoned. Malcolm never performed any duty or reported for or offered to perform duty during the periods in question. The administratrix contends that Malcolm was entitled to his salary while he held the office of policeman, whether he performed or offered to perform duty or not during the periods in question; in other words, that the salary was an incident of and belonged to the office. The defendant contends that the board of police had the right to establish rules and regulations for the government and discipline of the force, and to provide therein for fines and forfeitures in cases of absence from duty, that they did establish such rules, and that under them the plaintiff is not entitled to recover. These contentions present the principal question in the case. The justice who heard the case found that the conduct of Malcolm had been such that he had waived all right to his salary during the times when he was absent from duty. If the defendant’s contention is correct, it disposes of the case, we think, on a somewhat broader and more satisfactory ground than that on which it was disposed of by the justice who heard it, and we therefore proceed to consider in the first instance the defendant’s contention. [319] Under the revised charter of the city of Boston, St. 1854, c. 448, § 33, “ The administration of police, together with the executive powers of the said corporation generally, and all the powers formerly vested in the selectmen of the town of Boston,” were vested in the board of aldermen “ as fully and amply as if the same were herein specially enumerated.” It seems to us that under the authority thus conferred the board of aldermen had the power to adopt such reasonable rules and regulations as they deemed necessary for the government and discipline of the police, and to provide for cases of meritorious service, or by suitable fines and forfeitures for cases of absence from or neglect of duty. And accordingly they adopted a rule that “ Policemen wounded or otherwise disabled while in the performance of their official duty, and those rendered ill in consequence of unusual or extraordinary hardship or exposure beyond the regular line of their duty, shall receive pay for their period of service necessarily lost in recovering, when duly certified,” etc. “ In cases of ordinary sickness pay may be allowed for such length of time as the committee on police may determine.” By St. 1878, c. 244, the board of aldermen was superseded, so far as the administration of the police was concerned, by a board of police commissioners appointed by the mayor subject to the approval of the city council. By § 2 of that act it was provided that “ all the powers vested by the statutes of the Commonwealth in the board of aldermen of the city of Boston in relation to the administration of police, and the appointment of watchmen and policemen in said city, . . . shall be and hereby are vested in the said board of police commissioners.” By § 4 it was provided that “ The government and discipline of the police department shall be such as the said board of police commissioners may from time to time by rules and regulations prescribe,” and by § 10 it was enacted that the members of the police force in office when the commissioners were first appointed should hold their offices till removed or placed on the retired list by the commissioners ; “ and the present rules and regulations of the board of aldermen for the government of the police shalfcontinue in force until otherwise ordered by the said commissioners.” It is plain, we think, from these various provisions, that the board of police commissioners, as the successors of the board of aldermen in the [320] administration of the police force, had a like power to adopt such reasonable rules and regulations as they should deem proper in regard to matters affecting the value and efficiency of the force. By St. 1885, c. 323, the board of police commissioners was superseded in its turn by a board of police, which has continued ever since, and which is appointed by the Governor with the advice and consent of the Council. By § 2 of that act this board was given “ authority to appoint and establish and organize the police of said city of Boston, and make all needful rules and regulations for its efficiency,” and it was further provided in that section that “ all the powers now vested in the board of police commissioners in. said city of Boston by the statutes of the Commonwealth or by the ordinances, by-laws, rules, and regulations of said city, except as otherwise hereby provided, are hereby conferred upon and vested in said board of police.” By § 3 it was provided that the members of the police force in office when the board was first appointed should continue to hold their offices until removed or placed on the retired list by said board, and that “ the present rules and regulations of the board of aldermen for the government of the police shall continue in force until otherwise ordered by said board of police.” There are other provisions to the effect that the police are to be paid by the city of Boston upon the requisition of the board, that no larger number of patrolmen is to be appointed except with the consent of the city “ than the present police commissioners of said city are now authorized to appoint,” and that the pay of the police shall not “ be increased or diminished except by the concurrent action of said city and said board of police.” § 5. We discover nothing in this act which manifests an intention to cut down the powers of the board of police in respect to the government and discipline of the police, as compared with those exercised by the board of police commissioners and by the board of aldermen. On the contrary, it is expressly provided that it shall have authority to make all needful rules and regulations for its efficiency, and that all powers vested in the board of police commissioners, “ except as otherwise hereby provided, are hereby conferred upon and vested in said board of police.” The exception does not, we think, affect the question. It is manifest that the power to make rules and regulations in regard to meritorious service, or to [321] establish fines and forfeitures in cases of absence from or neglect of duty, would constitute a powerful means of maintaining the discipline and efficiency of the force. We cannot believe that it was the intention of the Legislature to deprive the board of police of such an instrumentality, and we find nothing in the act which requires or warrants such a result. The provision in regard to increasing or diminishing the pay manifestly refers to the salary which has been or may be established, and not to such reductions as may occur through fines or forfeitures established to preserve and promote the discipline and efficiency of the force. The plaintiff relies upon cases in New York and other States, especially those in New York, and upon the nature of the office held by a member of the police force. But as we view the matter, it relates to the construction of the statutes vesting the administration of the police in the board of aldermen and in the boards which succeeded it, rather than to the nature of the office of a policeman and its incidents. It is manifest that in construing our own statutes upon such a matter as this, cases elsewhere can be of little if any assistance. But it is to be observed that it appears in New York to be expressly provided by statute “ that policemen absent from duty through disease or injuries contracted in public service shall receive full pay.” People v. French, 91 N. Y. 265, 278. The administratrix in effect concedes, as we understand her, that, if the rules and regulations established by the board of police in regard to the pay which members of the force are entitled to when absent from duty are valid, then she is not entitled to recover. For reasons which we have indicated, we think that the rules are valid. The result to which we have come on this branch of the case renders it unnecessary to consider the question of waiver. In accordance with the terms of the report, the entry will be judgment on the finding. So ordered.