Phillips v. City of Boston

• Decision Date: 02 January 1890
• Citation: 150 Mass. 491,23 N.E. 202
• Parties: PHILLIPS v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 491

23 N.E. 202

PHILLIPS v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1890

After a full hearing on said agreed facts, judgment was ordered thereon for defendant. Plaintiff appeals.

COUNSEL

A.E. Pillsbury and W.B. Lawrence, for appellant.

A.J Bailey, City Sol., for appellee.

OPINION

DEVENS J.

We shall assume, without deciding in favor of the plaintiff that it was not in the power of the board of police commissioners created by the act of 1878 lawfully to have removed the plaintiff summarily, without definite cause assigned, and without a hearing, from his position as a member of the police force of the city of Boston. St.1878, c 244, § 3; Ham v. Board, 142 Mass. 90, 7 N.E. 540; O'Dowd v. Boston, 149 Mass. 443, 21 N.E. 949. The plaintiff had, on October 11, 1878, received a request in writing, for his resignation, in view of the reorganization of the police department, to take effect October 21st, to which he had replied, desiring to know the cause of the request, remonstrating against the same, desiring to know what charges had been preferred against him, and asking a hearing. On October 19th, by vote of the police commissioners, he, with some others, was removed without a hearing, to take effect October 21, 1878, on the reorganization of the department. This vote was communicated to the plaintiff, on October 20th, and he continued to perform his duties until after the evening roll-call of that day, when he was ordered to deliver up, and did deliver up, "the buttons and badge of his office, and all other city property in his possession." The plaintiff has never resigned his office, nor has there been any other communication between him and the police commissioners. Although ready and willing, he has been prevented from performing the duties of his office as a member of the police force of the city of Boston, and has never since been assigned to duty by the commissioners, nor has he performed, or attempted to perform, any act of police duty. On August 2, 1888, this action, which is one of contract, was brought against the city, wherein the plaintiff claims the full salary which would have become due to him had he performed his duties as a member of the police force during the time of nearly 10 years which has intervened since his removal from and surrender of his office. His contention is that he has always continued, during this period, to be lawfully a member of the police force; that, as incident to his lawful title and to his right to the possession of his office, of which possession he has been wrongfully deprived, he may recover from the city the salary provided by its ordinances for such an office. That the proceedings of the commissioners, with the acts of the plaintiff, together, actually operated to remove the plaintiff, so that, even if he was still a police officer de jure, he ceased to be one de facto, during this period, can hardly be questioned. He was not an incumbent of the office, in any such sense as is one who performs its duties. Whether the salary of a public officer is strictly an incident of the title, so that a de jure officer, although he has been actually removed therefrom, may still maintain an action against the person or corporation originally liable therefor; whether his only remedy is by action against the officer de facto, who has received it, or against those by whom he has been wrongfully kept out of possession; or whether, in order to entitle one to receive the salary attached to an office, it is necessary that he should not only have a title thereto as of right, but should also exercise the office,--are questions upon which the authorities in America are numerous and conflicting. It would not, probably, be possible to reconcile them, although the decision of many has undoubtedly depended upon the statutes of the states in which they have been made. Andrews v. Portland, 79 Me. 491, 10 Atl.Rep. 458; ...