80 A. 39 | N.H. | 1911
It has been decided by numerous cases that a town in the performance of the duty of repairing its highways (P. S., c. 75, s. 1) acts in a public or governmental capacity. "The liability of towns in respect to highways does not differ in character or extent from that which would attach to the *136
state if it provided and maintained highways directly. It depends upon the same conditions. It is limited to that which the state permits, as set forth in the statutes on the subject." Sargent v. Gilford,
It is practically conceded by the plaintiff that if the defendant had been engaged in the performance of its imposed duty of repairing the highway in question, under section 1, chapter 75, Public Statutes, it would not be liable for the injuries sustained; but is it urged that it is liable because the work it was doing was undertaken by it voluntarily and without legislative compulsion. This contention is based upon the provisions of chapter 35, Laws of 1905, the object of which, as stated in section 1, was "to secure a more uniform system for the improvement of main highways throughout the *137 state, by the cooperation of the municipalities and the state in providing means therefor, . . . the primary object being to, secure an improvement of the highways within the limits of every town in the state." Section 3 requires each town to set apart a certain percentage of the money "annually raised and appropriated for the repair of its highways . . . to be used for the permanent improvement of its main highways, such improvement to be made under the advice of the state engineer." Under this. provision alone, it is clear that the town has no option, but must provide for and perform the work of permanent highway improvement within its territory. Section 4 provides that if a town desires "state aid" for such highway improvement, it "shall raise, appropriate, and, set apart an additional sum equal to fifty per cent of the amount required to be set apart for the permanent improvements under section 3 of this act," and notify the governor and council of such action. In section 5 the amount of state aid for such town is provided for. Section 6 provides that "the amount of money set apart by such city or town as applies for state aid, as provided for in sections 3 and 4, with the amount apportioned by the governor and council, as provided for in section 5, shall constitute a joint fund for the permanent improvement of such highway or highways, within such city or town as the governor and council, and mayor and city councils or such other board as has jurisdiction over highway expenditures of a city, or selectmen of a town, may designate for the permanent improvement of such highways." Section 7, as amended (Laws 1907, c. 60, s. 1), provides: "All work of highway improvement paid for out of said joint funds shall be performed in accordance with specifications provided by the governor and council. Where the amount of the joint fund in any one instance exceeds one thousand dollars, the work shall be done by contract awarded to the lowest responsible bidder, except, however, that upon representation by the proper authorities of any town or city that such town or city owns or will provide suitable and sufficient tools, utensils, and machinery for the execution of the work in a manner satisfactory to the governor and council, the governor and council may, if they deem it expedient, permit such town or city to perform the work within its boundaries upon such terms as may be acceptable to the governor and council."
In accordance with these provisions of the statute, the defendant town, according to the plaintiff's declaration, raised and appropriated the additional sum required in section 4 in order to receive the benefit of the *138 state aid, and was duly permitted by the governor and council to perform the work of the permanent highway repair contemplated. It thereupon entered upon the execution of the work, during which the plaintiff's intestate, a laborer upon the road, was injured by the alleged negligence of the defendant in its method of doing the work. Upon this state of facts the plaintiff claims that the defendant is liable, because it was not compelled by the legislature to do the work, but voluntarily sought the privilege of doing it. While it was not compelled to do it, as it undoubtedly might have been, it accepted the privilege of doing it; and having assumed the obligation, did it become a mere contractor with reference to the work and liable in all respects as an individual, or did it still act as a governmental agency for whose wrongful acts it is not responsible? In other words, does the mere fact that a town performs the work of highway repair under a statute that does not impose that duty upon it, but permits it to do it, determine the question of its liability and render it responsible for its acts, like a private corporation or an individual? If the defendant had not accepted the state aid and had expended the money it was obliged to set apart under section 3 for permanent highway improvement, it would have been obliged to expend the money for that purpose; and if it had been doing precisely the same work of repair under section 3 when the plaintiff's intestate was injured, its non-liability would hardly be questioned. The plaintiff's contention therefore rests upon the simple proposition that the statute authorizing the work of repair to be paid for from the joint fund permitted the defendant to do the work if it desired to.
But the absence of a legislative mandate to a town to perform a public, governmental service may not be determinative of the character it assumes when, under a permissive statute, it performs the service. If it voluntarily exercises authority with which the legislature has invested it, without requiring its exercise, it may still be performing a governmental function from which it derives no special advantage. If certain repairs are necessary to be made on a highway, the town in doing the needed work is rendering a public service, whether its authority to do it is mandatory or permissive. The authority, however expressed, is vested in it as a state agency and not as a private corporation. Curran v. Boston,
The liability of municipal corporations has been affirmed or denied for a variety of reasons, which in the last analysis seem to be effective as evidentiary facts of the legislative intention. In Gross v. Portsmouth,
In connection with the fact that a town cannot under the statute control the agency by which the work is done, in a particular instance, the further fact that it derives no special benefit from its execution is often regarded as important. Edgerly v. Concord,
"To charge a corporation with damages for injuries arising from misfeasance and neglect of duty, no statute fixing the liability, there must be acts positively injurious committed by authorized agents or officers in the course of the performance of corporate powers, or in the execution of corporate duties, in distinction from those done in a public capacity as a governing agency." Edgerly v. Concord,
In this case the character of the work of repairing the highway was clearly governmental; and the evidence does not show that the legislature permitted the defendant to do the work in any other capacity than that of a state agent. As a state agent, it was bound to perform the legislative duty of deciding what general repairs should be made upon its roads and the ministerial duty of making them. It had the tools and machinery necessary for that purpose and it was competent to do the special work of permanent repairs as the representative of the state, which the state with the concurrence of the town decided ought to be done for the public benefit. It was not employed as a private contractor to perform a public work, but as an agency of the state already charged with the duty of doing almost identical public work. It would not be expected under such circumstances that the legislature would seek its services as a private corporation to perform the governmental work of permanent highway repair. Because it was a convenient public agency to make limited repairs, it was deemed to be an equally convenient public agency to make more extensive repairs of the same character.
Demurrer sustained.
All concurred. *142