| Mass. | May 19, 1899
The first step in the transactions which led to the rendering of the services for which the plaintiffs seek compensation was the vote of the defendant, in the town meeting of November 5, 1895, under a proper article in the warrant, authorizing the selectmen to propose to the State Highway Commission that the town should pay for the building of about two miles of macadamized road to be built under the direction of the commission between Ware and Gilbertville, the condition of the payment to be that the commission should build two other miles oJE State road, the building of which was then a question pending before the commission under petitions already made. The services consisted in the making of such a plan and profile of the two miles which the vote authorized the selectmen to propose that the town should pay for building, as is required by St. 1894, c. 497, § 1, to accompany the petition to the commission for the taking of a road as a State highway, and these services were rendered at the request of the selectmen, in August, 1896. Thereafter, at a town meeting held on July 12, 1897, the defendant took further steps in the execution of the plan initiated by the vote of November 5, 1895, by voting that the town expend $8,000 under the direction of the commission in the construction of a State highway on the road from Ware to Gilbertville, provided the commission would expend an equal amount during the year 1897 in the construction and continuance of said State road between Ware and Gilbertville, and also by voting to borrow the sum so to be expended by the town. All these votes related to the road for which the plaintiffs made the plan and profile at the request of the selectmen.
Under the provisions of St. 1894, c. 497, § 1, when the selectmen of a town, having adjudged that the public necessity and convenience require that the Commonwealth take charge of an existing road, and apply by petition to the commission for the taking of the road as a State highway, their petition must be accompanied by a plan and profile of the road. There is no specific provision in any of the statutes relating to State highways as to how the expense of this plan and profile shall be paid. See St. 1893, c. 476 ; St. 1894, c. 497; St. 1896, cc. 345, 481, 513, 541; St. 1897, cc. 340, 355; St. 1898, c. 365, § 2;
In making an adjudication and applying to the commission under St. 1894, c. 497, § 1, very likely selectmen act as public officers; and, unless when perhaps the town has taken the initiative and given them special authority, do not act as agents of the town. But in proposing to the commission that the town should pay for the macadamizing of two miles of its own roads if the commission would build two other miles of State highway, the selectmen were not acting as public officers, but as agents of the town specifically authorized by it to make the proposal by the vote of November 5, 1895.
It cannot be said, as matter of law, that a plan and profile of the road with reference to which the selectmen were so authorized to make the proposal were not proper and necessary to accompany the proposal. Nor can we say that the town was not in such a relation to the State highway, the building of which it attempted to secure through the proposal which the selectmen were to make, as to render it within the proper power of the town to attempt by fair means to secure the desired action upon the part of the commission. The town was charged by law with the burden of keeping in repair the one mile of that highway in Ware, and was under a liability to make compensation to any person for damage to person or property occasioned by the neglect of the town in the performance of that duty. If the action which the selectmen were authorized by the vote to attempt to secure from the commission should be taken, the
As the statutes with reference to the State highway commission and State highways contemplate applications to the commission on behalf of towns with reference to the construction and repair of any road in the town, as well as the taking of certain roads as State highways, we think it was within the power of the town to give to its selectmen, as its agents, the authority to make to the commission the proposal authorized by the vote of November 5, 1895, and that the procuring of the plan and profile was a proper and reasonable step on the part of the selectmen in the execution of the service so committed to them. As they were merely acting as agents, no formal record of their action was necessary.
The result is, that the- case should have been left to the jury.
Exceptions sustained.