173 Mass. 312 | Mass. | 1899
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.
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.