Bean v. Inhabitants of Hyde Park

• Citation: 143 Mass. 245,9 N.E. 638
• Parties: BEAN v. INHABITANTS OF HYDE PARK.
• Decision Date: 06 January 1887
• Court: United States State Supreme Judicial Court of Massachusetts

143 Mass. 245

9 N.E. 638

BEAN v. INHABITANTS OF HYDE PARK.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1887

COUNSEL

W.H. Powers and J.W. Keith, for plaintiff.

The county commissioners ordered the town of Hyde Park to "complete said way." Hyde Park v. County Com'rs, 117 Mass. 416, in which this court has once passed upon this decree of the county commissioners. And it thereupon became the duty of the town to make the way. Deane v. Randolph, 132 Mass. 475. To complete the way the work performed by the plaintiff must have been done. The word "highways," in the vote of April, 1881, is used in its popular sense, and here means all public traveled ways. Harding v. Medway, 10 Metc. 465. See McCormick v. Boston, 120 Mass. 499. Under the law in force when the vote was passed appropriating $7,000, etc (St.1871, c. 298, § 2, as amended by St.1877, c. 58,) the selectmen became the general agents of the town, and had authority to apply the money in payment of the work done by the plaintiff. Gilkey v. Watertown, 141 Mass. 319; S.C. 5 N.E. 152. The selectmen were not bound to make or keep any records of their proceedings. Com. v. McGarry, 135 Mass. 553. The evidence offered to show the contract made by the plaintiff with the selectmen should have been admitted. McCormick v. Boston, 120 Mass. 499.

J.E Cotter, for defendant.

It was not claimed at the trial, and it does not appear by the exceptions, that the street was out of repair, unsafe, or inconvenient; or that the select men or highway surveyors of the defendant town ever performed or ordered similar work to be done in behalf of the town, without express authority therefor. The money voted in 1881 "for highways" was for making ordinary repairs that year, and for no other purpose. Pub.St. c. 52, § 3. See Pub.St. c. 49 § 88. The contract alleged by the plaintiff to have been made with him was not one within the meaning of Pub.St. c. 27, § 9. The selectmen or highway surveyors were not authorized to make the contract which the plaintiff offered to prove. They were not the agent of the town for that purpose. Smith v. Cheshire, 13 Gray, 318; Goff v. Rehoboth, 12 Metc. 30; Clark v. Inhabitants of Russell, 116 Mass. 455; Todd v. Inhabitants of Rowley, 8 Allen, 55. This case is governed by Clark v. Inhabitants of Russell, ubi supra, and is unlike the case of McCormick v. Boston, 120 Mass. 499.

OPINION

MORTON C.J.

We assume, for the purposes of this case, that the county commissioners of Norfolk county, in 1873, relocated River street, in the town of Hyde Park, and determined that the town should construct the way within three years according to the location. It became the duty of the town to construct the way according to the order of the commissioners, and, if it did not do so, the commissioners could cause the way to be completed, pay for it out of the county money, and issue a warrant against the town for the collection of the expense. Pub.St. c. 49, §§ 60, 61. But the selectmen or highway surveyors have no authority to construct the way, and pledge the credit of the town therefor, unless they are authorized by a vote of the town. As stated in Smith v. Cheshire, 13 Gray, 318, "they are not general agents. They are not clothed with the general powers of the corporate body for which they act. They can only exercise such powers and perform such duties as are necessarily and properly incident to the special and limited authority conferred on them by their office. They are special agents,...