McManus v. Inhabitants of Weston, 164 Mass. 263

McManus v. Inhabitants of Weston

164 Mass. 263 | Mass. | 1895

Morton, J.

These two cases were tried together, and both depend on the same facts, and the principal question in each is whether the road commissioners acted as public officers, or as servants of the town. We think that they acted in the former capacity, and not in the latter.

*266The office of road commissioner is of recent origin. It was first established by St. 1871, c. 158. By the second section of that act, it was provided that “said road commissioners shall have and perform exclusively all the powers and duties now vested by law in selectmen and surveyors of highways, concerning the laying out, altering, making, repairing, or discontinuing streets, ways, sidewalks, sewers, and drains.” This was amended by St. 1873, c. 51, § 1, which substituted therefor a new section as follows: “ Said road commissioners, in matters concerning streets, ways, bridges, monuments at the termini and angles of roads, guide-posts, sidewalks, shade trees, sewers, and drains, shall exclusively have the powers and be subject to the duties, liabilities, and penalties of selectmen and surveyors of highways.” This section, with an added provision about the moving of buildings in public streets, forms Pub. Sts. c. 27, § 75, and that in turn forms St. 1893, c. 423, § 23, in regard to the powers and duties of town officers. It is evident that the object of the amendment was not to restrict the powers and duties of the road commissioners, but rather to enlarge them, or perhaps to make it clearer what they were originally intended to include. The purpose of the statute was to enable towns to unite in one board, for the sake of greater efficiency, powers and duties which, speaking generally, were exercised by the selectmen and surveyors of highways in regard to streets and ways, and to give them the exclusive control over such matters. And it is apparent that a board so constituted, and acting within the scope of its powers and duties, would act as a board of public officers, and not as servants of the town. Walcott v. Swampscott, 1 Allen, 101. Tindley v. Salem, 137 Mass. 171, 173 et seq., and cases cited. Blanchard v. Ayer, 148 Mass. 174.

The plaintiffs contend, however, that the work in which the road commissioners were engaged upon Central Avenue did not come within their powers and duties as public officers. But we think that what they were doing fairly may be called a “ making and repairing,” within the meaning of Pub. Sts. c. 52, § 3. Although ordered by the county commissioners, the work did not relate to the construction of a new way, or the building of one that had been materially widened or lengthened, or changed from its original lay-out, but was in the nature of repairs to *267and improvement of an existing way, and for the purpose of rendering it safer and more convenient to travellers. The petition under which the county commissioners acted was for the relocation of an existing way. What was to be done was spoken of in the first appropriation by the town as “ repairs on Central Avenue,” and the exceptions expressly state that the ledge where the work was being done at the time of the injury complained of was wholly within the old lines, and that the location by the county commissioners did not differ much from the old line of fences; meaning, as we infer, that the old road and the road as located by the county commissioners were substantially the same. There is nothing to show that the removal of the ledge would not have been within the ordinary scope of the powers and duties of surveyors of highways. From the absence of any testimony as to the previous condition of the road, it is not easy to say that the repairs, though extensive, were not such as would have come within the province of the road commissioners after the town had appropriated the money for them. Proctor v. Stone, 158 Mass. 564. The fact that they were unusual, or permanent, or expensive, or authorized by a special vote and appropriation, would not prevent them from being of such a character. Mitchell v. Bridgewater, 10 Cush. 411. Denniston v. Clark, 125 Mass. 216. Pratt v. Weymouth, 147 Mass. 245. Hennessey v. New Bedford, 153 Mass. 260.

In Craigie v. Mellen, 6 Mass. 7, it was assumed without question that it was the duty of the highway surveyors to make safe and passable a town way which bad been laid out for the inhabitants of Cambridge and approved by them. See also Cyr v. Dufour, 68 Maine, 492.

In Callender v. Marsh, 1 Pick. 418, 427, which has never been questioned as an authority, (Burr v. Leicester, 121 Mass. 241, 242,) it is said that the authority of highway surveyors “ would seem to include everything which may be needed towards making the ways perfect and complete, either by levelling them where they are uneven and difficult of ascent and descent, or raising them where they should be sunken and miry.” In consequence of this decision, and of the suggestions contained in it, a statute was passed giving a remedy to landowners who sustained damages by any act done in raising, lowering, or otherwise, for the purpose *268of repairing a highway or town way. Rev. Sts. c. 25, § 6. Pub. Sts. c. 52, § 15. But as was said in Benniston v. Ciarle, 125 Mass. 216, 225, “ This statute does not affect the extent of the authority of the public and its officers, or the principle upon which that authority rests.” It is true that it has been held that the powers and duties of highway surveyors were confined to repairs, and that neither they nor selectmen had authority by virtue of their respective offices to build or contract for the building of new ways, or of ways that were so widened or altered that what was to be done would amount to the substitution of a new way for an old one, either within the same or other lines. Todd v. Rowley, 8 Allen, 51. Bemis v. Springfield, 122 Mass. 110. Denniston v. Ciark, 125 Mass. 216, 220. Bean v. Hyde Park, 143 Mass. 245. Blanchard v. Ayer, 148 Mass. 174.

There is no general rule defining what are repairs, and what are changes or alterations so radical that they fairly cannot be called such. Proctor v. Stone, 158 Mass. 564. The original statute creating the office of highway surveyors gave them power to amend as well as to repair; (St. 1786, c. 81, § 1;) and the law seems to have been liberally applied in favor of repairs. Though the word “ amend ” was omitted in the Revised Statutes and the later revisions, there is nothing to show that there was any intention to restrict the powers of the surveyors within narrower limits than those established by the original act.

By St. 1877, c. 58, (amending St. 1871, c. 298, § 2,) — which abolished the payment of highway and town way taxes in labor and materials, and provided that towns should raise by assessment on the polls and estates of residents and non-residents such sums of money as were necessary for making and repairing highways and town ways, — it was provided that the sum so voted should be expended by the surveyors of highways and the road commissioners in making and repairing the ways; the difference between the highway surveyors and road commissioners being that, in the case of the former, the expenditures were to be under the direction of the selectmen, but in the latter not. Section 2 of St. 1871, c. 298, with the amendment of St. 1877, c. 58, was incorporated into and forms Pub. Sts. c. 52, § 3, on which the defendant relies. The meaning of the word “making ” in this connection does not appear to have been considered, *269or to have received any construction. In the act establishing the road commissioners it evidently meant something more than repairing. St. 1871, c. 158, § 2. In the present and earlier statutes it seems to have been used, in some instances, in a sense which would include building or constructing. Pub. Sts. c. 52, § 13 ; c. 49, §§ 9, 75. Rev. Sts. c. 24, §§ 10, 44, 47, 64; c. 25, §§ 9, 15. St. 1796, c. 58, § 1. St. 1818, c. 121, § 1. It is so used in the sewer acts. Pub. Sts. c. 50, §§ 1, 3, 4. But we do not think that it can be construed, in the section on which the defendant relies, as authorizing the road commissioners, whenever a new way is laid out in a town, to go on and build it. Craigie v. Mellen, 6 Mass. 7. Cyr v. Dufour, 68 Maine, 492. The road commissioners are not given power generally over the laying out, making, discontinuing, and repairing of ways, but only such powers as the selectmen and highway surveyors have, and such as are bestowed by the section under consideration. It is clear that neither the selectmen nor highway commissioners have authority to build new ways. We think that the jurisdiction of road commissioners is confined to existing ways, within lines corresponding substantially to existing lines, and possibly to making passable ways newly laid out; Graigie v. Mellen, ubi supra ; and that, as applied to them, the word “ making ” means more than repairing, and may properly include work of the general character of that which they were doing in this case upon Central Avenue, and that after the town had made the appropriation it was for the commissioners, in the absence of any further action on its part, to do the work with such instrumentalities, and in such manner, as seemed to them best. Pratt v. Weymouth, 147 Mass. 245. Hennessey v. New Bedford, 153 Mass. 260.

Although the duty of completing the road according to the lay-out and order of the county commissioners is imposed by statute upon the town, there can, we think, be no question that the town fulfils the duty thus imposed upon it if the money necessary to carry out the order of the county commissioners is appropriated by it, and the work is done by public officers duly chosen by it, and within whose jurisdiction it comes. Whether the work is done by public officers, or by persons specially appointed by the town, it is equally within the power of the county commissioners to see that their order is complied with.

*270The fact that the town voluntarily adopted the statute providing for the election of road commissioners can make no difference as to whether the commissioners were or were not acting as public officers. Tindley v. Salem, ubi supra.

A majority of the court think that the exceptions should be overruled, and it is so ordered. Exceptions overruled.