101 Mass. 117 | Mass. | 1869
The power of selectmen to establish a fire department under the Gen. Sts. c. 24, §§ 23-31, is not derived from the town, and they cannot be deprived of it by vote of the town. It is not dependent upon the contingency of a failure on the part of the town to elect ¿rewards.
In the absence of a fire department, it devolves upon the selectmen to appoint enginemen ; to direct in the formation of engine, hose and other companies; to prescribe their duties; to approve the rules and regulations that such companies may adopt in their organization; and to discharge those wfio are negligent in their dtities. When a fire breaks out, the ¿rewards take the direction of all operations, provided there are ¿reward?
The establishment of a fire department does not vacate the office of the firewards. They still remain officers of the town, with all the authority and the duties that belong to the office, to be exercised if there should be occasion. But the fire department must be under the control of its own officers, and when they are present, the firewards have no occasion to act.
As the engineers act as firewards, the selectmen may properly deliver to them the appropriate badges of their office. We suppose the suit to have been brought, not for the purpose of obtaining the badges, but to test the right of the selectmen to establish the fire department, after the town had acted upon the subject by electing firewards.
In accordance with the foregoing views, the mandamus must be refused and the Petition dismissed.