297 Mass. 513 | Mass. | 1937
The plaintiff seeks to recover for the use of trucks and tractors in plowing and hauling snow on and from the streets of the _ city as ordered by the alderman who, in accordance with the city charter, had been chosen director of the department of engineering. St. 1911, c. 621, Part II, § 41.
At the trial no evidence was introduced bearing upon the existence of an extreme emergency, except that on January 28, 1935, the city council by unanimous vote passed this order: "Whereas: Due to the conditions of the City because of the extreme amount of snow, an extreme emergency involving the health and safety of the people is hereby declared; Therefore, be it ordered: That the Director of Engineering be, and hereby is ordered to take all necessary means and expend any amounts of money necessary to expeditiously and thoroughly relieve these conditions.” The plaintiff contends that this order creates a presumption, or constitutes prima facie evidence, of the existence of such emergency. The defendant contends that it is not even evidence of such emergency, and that the plaintiff must fail in the action for lack of proof that any emergency existed.
In Flood v. Hodges, 231 Mass. 252, at 256, it was said
One dealing with a city or town cannot recover if statutory requirements such as are contained in the defendant's charter have not been observed. Dyer v. Boston, 272 Mass. 265, 274. McHenry v. Lawrence, 295 Mass. 119, 122, and cases cited. Peters v. Medford, 295 Mass. 588, 591-592. We need not consider what effect § 14 of c. 44 might have, if the defence rested entirely upon § 31 of that chapter, for' § 14 can in no event give relief against the prohibition of the charter. And, at least where the question is seasonably raised, the burden of proving compliance must rest upon the plaintiff as with other essential elements of his case. Smith v. Hill, 232 Mass. 188. No presumption as to the regularity of the acts of public officers can take the place of such proof. Wood v. Concord, 268 Mass. 185, 188-189.
The plaintiff further contends that because under the charter the director of the department of engineering has the powers of surveyors of highways (St. 1911, c. 621, Part II, § 40), he was acting within the authority to remove snow expressly conferred upon surveyors of highways by G. L. (Ter. Ed.) c. 84, § 7. But the latter statute gives surveyors of highways no authority to make contracts in behalf of the town, except where the town “neglects to vote a sufficient amount” or to make other effective provision therefor. Loker v. Brookline, 13 Pick. 343. Blanchard v. Ayer, 148 Mass. 174. Wormstead v. Lynn, 184 Mass. 425, 427. Tuckerman v. Moynihan, 282 Mass. 562, 567. There was no evidence that the city had failed to provide sums sufficient to make the ways “reasonably safe and convenient.”
Order of the Appellate Division reversed.
Judgment for the defendant on the finding.