Blanchard v. Inhabitants of Ayer

• Decision Date: 02 January 1889
• Citation: 148 Mass. 174,19 N.E. 209
• Parties: BLANCHARD v. INHABITANTS OF AYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 174

19 N.E. 209

BLANCHARD v. INHABITANTS OF AYER.

Supreme Judicial Court of Massachusetts, Worcester.

January 2, 1889

COUNSEL

A. Norcross H.C. Hartwell, and C.F. Baker, for plaintiff.

F.P Goulding and Geo. J. Burns, for defendant.

OPINION

W ALLEN, J.

The action is to recover the value of work done and materials furnished by the plaintiff upon a highway in the defendant town, under a verbal contract with the selectmen and highway surveyors of the defendant. There was no act or vote of the defendant affecting the matter, except the election of selectmen and making them highway surveyors. If the contract related to the building of abutments ordered by the county commissioners, neither the selectmen nor the highway surveyors had authority to expend money or to make contracts for the work. Bean v. Hyde Park, 143 Mass. 245, 9 N.E. 638. The plaintiff contends, and it must be assumed under the special finding of the jury, that the work was done in ordinary repairs of the highway, and the only question is whether highway surveyors have authority to bind their towns by contract for such repairs.

Highway surveyors are public officers, whose duties and authority are prescribed by statute, and are not by statute agents of their towns. White v. Phillipston, 10 Metc. 108; Walcott v. Swampscott, 1 Allen, 101; Barney v. Lowell, 98 Mass. 570. The statute provides that towns shall vote money for repairs of highways, and that such money shall be expended by the surveyors of highways that if there is a deficiency in the amount appropriated within the limits assigned to any surveyor, or if the amount is not furnished or paid to him, he may employ persons to make the necessary repairs on the credit of the town, to an amount not exceeding $10; and that, if the town neglects to vote sufficient money for the purpose, or does not otherwise provide therefor, each surveyor in his own district, first having obtained the consent in writing of the selectmen, may employ persons to make necessary repairs on the credit of the town. Pub.St. c. 52, §§ 3-9. Those provisions are plain. The money appropriated to each surveyor's district is to be paid to him, and expended by him, if the amount appropriated is insufficient, or if it is not paid to him he can contract in behalf of the town to an amount not exceeding $10. If that is not sufficient, he can, with the written approval of the selectmen, contract for the town to any amount necessary. A highway surveyor cannot himself perform or furnish labor on the credit of his town, ( Jones v. Lancaster, 4 Pick. 149; Sikes v. Hatfield, 13 Gray, 347; Goddard v. Petersham, 136 Mass. 235;) not even when authorized by the statute to employ labor to the extent of $10, (Armstrong v. Wendell, 9 Metc. 522.) He cannot, except in the cases and manner pointed out by statute, make any contract for his town. Loker v. Brookline, 13 Pick. 343. See, also, as to selectmen, Clark v. Russell, 116 Mass. 455.

It is argued that the statute intends that the surveyor may contract for the town to the extent of the money appropriated for highways and unexpended at the time of the contract. Apart from the improbability of the intention of the legislature to establish a rule so complicated and difficult of application, it would be a very forced construction to infer, from a duty imposed upon a public officer to expend money furnished to him by a town for public purposes authority to bind the town by contract to pay money. Besides, such a construction is at variance with the plain intention of the statute. The statute intends, when there is no action of the town modifying its operation, that the selectmen shall assign to each surveyor his district, and fix the amount which he is to expend in his district, and that the amount shall be paid to him to expend. It cannot intend to authorize him to bind the town by contract to pay money to others from its treasury which it has already paid to him, while it gives him authority to contract for the town to the amount of $10 only, when the money is not paid to him, but remains in the treasury. Until 1871, highway taxes might be paid in labor or in money. They were separately assessed, and, when paid in money, were collected by the highway surveyor in his district, or by the town collector, and paid to the surveyor, who was to expend the money and account with the selectmen, and at the expiration of his office pay any money remaining unexpended to the town treasurer. St.1786, c. 81; St.1796, c. 58; Rev.St. c. 25, §§ 7-12, 16, 17; Gen.St. c. 44, §§ 12, 16-18; St.1871, c. 298,--abolished labor taxes, and provided that sums raised for repairing public ways should be assessed, and collected like other town taxes. There was no express repeal or change of any other of the provisions just referred to. Pub.St. c. 52, did not expressly re-enact the provisions of the general statute that the money, when collected, should be paid to highway surveyors, but implied that that should be done in the provisions that the money should be expended by the surveyor; that if it was not paid to him he might employ persons for the town in the manner pointed out; and that he should render an account to the selectmen of all moneys...