Quinlan v. City of Cambridge

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RONAN
• Citation: Quinlan v. City of Cambridge, 320 Mass. 124, 68 N.E.2d 11 (Mass. 1946)
• Decision Date: 08 July 1946
• Parties: QUINLAN et al. v. CITY OF CAMBRIDGE et al.

320 Mass. 124

68 N.E.2d 11

QUINLAN et al.

v.CITY OF CAMBRIDGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 8, 1946.

Report from Superior Court, Middlesex County; C. C. Cabot, Judge.

Suit by Terence Quinlan and others against City of Cambridge and another for a declaratory decree adjudging the validity of an ordinance purporting to grant sick leave to members of the police department. Facts agreed and case reported to the Supreme Judicial Court without a decision.

Decree entered adjudging part of the ordinance valid and the remainder invalid. R. C. Evarts, of Boston, for plaintiff.

J. A. Daly, City Sol., of Boston, for defendant.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and WILKINS, JJ.

RONAN, Justice.

This is a bill in equity under G.L.(Ter.Ed.) c. 231A, inserted by St.1945, c. 582, § 1, against the city of Cambridge and John B. Atkinson, the city manager, to secure a declaratory decree adjudging the validity of an ordinance purporting to grant sick leave to members of the police department. The parties agreed upon all the material facts, and the judge without making a decision reported the suit to this court.

The plaintiffs, permanent members of the police department of Cambridge, bring the bill in behalf of themselves and all other members of the department. The city since January 1, 1942, has been governed by a Plan E charter, so called. G.L.(Ter.Ed.) c. 43, §§ 1-45, inclusive, as amended, and §§ 93-116, inclusive, as inserted by St.1938, c. 378, § 15, and as amended. The defendant Atkinson as city manager is the chief executive officer of the city. The city council was authorized by St.1935, c. 214, to fix by ordinance the salaries of members of the police department, and such salaries were established by an ordinance, c. 2, § 153, providing compensation at various rates from $2,017.50 to $5,000. Section 154 of the said chapter provided that ‘the above mentioned salaries shall be in full for all services rendered by such officers in their official capacities.’ The city council, by an ordinance which became effective on November 5, 1945, amended said § 153 by adding thereto, in so far as now material, the following: ‘Any member of the police department in active service, who suffers an injury, illness or disability not connected with the performance of his duties as a member of said department, or an illness or disability connected with the performance of his duty if the injury, illness or disability renders him temporarily unable to attend to his said duties, shall receive his full pay from the city during his injury, illness or disability, not to exceed a total of twelve weeks in any calendar year. The chief of police is directed and empowered if the injury, illness or disability be self inflicted or self imposed or if there be any other good reason or cause, to deny a member of the department sick relief under this ordinance. Sickness or accidents as a result of the use of alcohol or drugs shall not be considered a proper claim for leave with pay. The time for receiving full pay during a temporary injury, illness or disabilitymay be extended beyond said twelve week period for each injury, illness or disability at the discretion of the chief of police.’

The establishment of salaries of municipal officers and employees is an act that is legislative in nature and may be exercised by the Legislature itself, or entrusted to the legislative branch of the city government, or delegated to the board or officer who appoints them or to some other board or officer. Hibbard v. County of Suffolk, 163 Mass. 34, 39 N.E. 285;Faulkner v. Sisson, 183 Mass. 524, 67 N.E. 669; Mayor of Cambridge v. Cambridge, 228 Mass. 249, 117 N.E. 312;Alger v. Justice of District Court of Brockton, 283 Mass. 596, 186 N.E. 838;Whalen v. First District Court of Eastern Middlesex, 295 Mass. 305, 3 N.E.2d 1005;Gorman v. Peabody, 312 Mass. 560, 45 N.E.2d 939. No contention is made that the statute, St.1935, c. 214, authorizing the city council to fix the salaries of police officers is not now in full force or effect or that it was affected by the adoption of the plan E charter on January 1, 1942. See Cunningham v. Rockwood, Mayor of Cambridge, 222 Mass. 574, 111 N.E. 409, Ann.Cas.1917C, 1100;Young v. City Council of Waltham, 243 Mass. 288, 137 N.E. 666;King v. Mayor of Quincy, 270 Mass. 185, 169 N.E. 894;Gilliatt v. Quincy, 292 Mass. 222, 197 N.E. 877.

Our inquiry is whether the power to fix salaries includes the right to grant sick leave with pay and, if so, whether relief can be given to the extent designated in the ordinance.

The plaintiffs do not contend that they are entitled to be paid as long as they continue to be police officers, but properly concede that in the absence of statute or ordinance they are entitled to compensation only for services actually rendered. Malcolm v. Boston, 173 Mass. 312, 53 N.E. 812;Donoghue v. Holyoke Street Railway Co., 246 Mass. 485, 494, 141 N.E. 278;Ryan v. Marlborough, 318 Mass. 610, 63 N.E.2d 902. See Walsh v. Bridgeport, 88 Conn. 528, 91 A. 969, Ann.Cas.1917B, 318. The defendants urge that payment for services not performed amounts to a gratuity. The city council cannot authorize the expenditure of public funds for the sole benefit of an individual, Matthews v. Inhabitants of Westborough, 131 Mass. 521;Jones v. Inhabitants of Natick, 267 Mass. 567, 166 N.E. 754;Connor v. Haverhill, 303 Mass. 42, 20 N.E.2d 424, because public funds may be used only for a public purpose. Duffy v. Treasurer & Receiver General, 234 Mass. 42, 125 N.E. 135;D.N. Kelley & Son, Inc., v. Selectmen of Fairhaven, 294 Mass. 570, 575, 3 N.E.2d 241. The payment of sick leave to a reasonable amount has been said to be in the public interest, in that it tends to attract competent and efficient persons to the public service and induces them to remain therein and that as a result thereof the public secures better service than would be otherwise obtainable. This may be true to a certain extent, and a grant of sick leave which may reasonably be thought to result in the rendition of better service is justified. The promotion of the public welfare is not only the foundation upon which the expenditure must rest but also the measure of the amount that may be expended, and where both concur the grant is valid even though an individual thereby acquires a private financial gain. Opinion of the Justices, 240 Mass. 616, 136 N.E. 157;Horrigan v. Mayor of Pittsfield, 298 Mass. 492, 11 N.E.2d 585;Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288, 23 N.E.2d 665; Opinion of the Justices, 319 Mass. 731,67 N.E.2d 588. It was said in Averell v. Newburyport, 241 Mass. 333, 335, 135 N.E. 463, 464, after pointing out the authority of a school committee over the government, discipline and management of the public schools, that ‘This general grant of authority to have charge of the public schools and to fix the salaries of teachers includes the subsidiary power to decide within reasonable limits whether, in order to promote efficiency and insure constancy of excellent service on the part of teachers, temporary absences without loss of pay shall be afforded them. The case upon this point is governed by the principle declared in Malcolm v. Boston, 173 Mass. 312, 321, 53 N.E. 812, and Wood v. Haverhill, 174 Mass. 578, 55 N.E. 381.’ It was held in the first of the two cases last cited that the board of police had authority to pass rules and regulations governing the payment of compensation in certain instances when a police officer was absent from duty, and in the second case that a city council was authorized to grant a ten-day vacation with pay to police officers where no additional expense was incurred by the city. We think that the city council of Cambridge, as an incident to the power to fix salaries, had the right to provide for the payment of sick leave to police officers.

There is no statute that empowers a city to pay a police officer during the period he is unable to perform his duties on account of illness. Any city except Boston, however, is required by G.L.(Ter.Ed.) c. 41, § 100, as appearing in St.1945, c. 670, to pay a police officer full compensation for the time he is absent on account of an injury sustained in the performance of his duty. It is urged that the enactment of the statute tends to show that a statute was necessary before a city could lawfully pay salary during absence on account of an injury sustained in the line of duty. This statute was principally concerned with the indemnification of a police officer for damages and expenses incurred from any act arising out of the performance of his duty, including those sustained in defending himself in actions brought against him by third persons, and the matter of loss of salary came in only inferentially as an allowable item of damages and expenses. The statute in this respect proceeds on the assumption that payments for compensation will not be made while the officer is absent from duty, and requires the city to reimburse him for this loss of salary. The mention of loss of salary might have been made for the purpose of allowing an item of damage that otherwise might not be allowed, and for the further purpose of fixing the extent that it should be allowed. This statute limits reimbursement for loss of pay to absences caused by injury, but it does not follow that the Legislature did not intend that cities should reimburse an officer for loss of pay due to an illness arising out of the performance of duty.¹ It may be that the Legislature determined that an absence due to injury could be more easily and satisfactorily proved than one due to illness, and that controversy, abuse of discretion and possibly fraud would be eliminated if absence due to illness was not included as an item for which the officer was entitled to indemnification. There is a distinction between an injury and an illness. Smith's Case, 307 Mass. 516, 30 N.E.2d...