Daniels v. Hathaway
| Decision Date | 26 May 1893 |
| Citation | 26 A. 970,65 Vt. 247 |
| Parties | GEORGE DANIELS v. MAHALON HATHAWAY ET AL |
| Court | Vermont Supreme Court |
GENERAL TERM, 1892
Action on the case against the defendants as selectmen of the town of Calais. Heard at the March term, Washington county, 1892 THOMPSON, J., presiding, upon the defendant's general demurrer to the declaration. Demurrer sustained pro forma, to which the plaintiff excepts. The case appears in the opinion.
Judgment affirmed and cause remanded.
Joseph A. Wing for the plaintiff.
This cause was heard on demurrer to the declaration. In the declaration it is alleged that the defendants were, on the 30th day of May, 1891, selectmen of the town of Calais that there was a certain described highway in said town which it was the duty of the town to keep in good and sufficient repair; that by special statute it is made the duty of selectmen of towns, in case of the neglect of other officers to keep the highways in good and sufficient repair; that on the day and year aforesaid said highway was insufficient and out of repair, in that there was not guard to prevent teams and travelers from falling into a pond over which said highway is built; that the road had been in this condition for a long time, which was, or should have been, known to the selectmen of the town; that the plaintiff, on the day and year aforesaid, lost a mare, and was otherwise damaged by reason of the insufficiency and want of repair aforesaid.
The declaration seems to be framed with reference to a recovery on account of damages accruing to the plaintiff by reason of the omission of the defendants, as selectmen of the town of Calais, to perform a duty imposed upon them in respect to highways, when the officers upon whom the duty primarily rests have been negligent in its performance. The liability of public officers to an individual for their negligence in the discharge of an official duty depends entirely upon the nature of the duty in the performance of which such negligence is alleged. To ascertain what the powers and duties of selectmen are, and whether they are to be exercised ministerially or otherwise, resort must be had to the statute, for, outside of the statute by which their powers and duties are prescribed, they have no authority, and are under no obligation to the public.
It is provided by No. 17, of the Acts of 1884, that in the absence of any other officers or agents appointed by the town, or in case of the refusal or neglect of such officers or agents to keep the highways and bridges in good repair, the selectmen of such town shall have charge of the same, and shall see to it that all highways and bridges in such town are kept in good and sufficient repair at all seasons of the year. It will be noticed that the duty imposed and the authority conferred by this statute are upon the board of selectmen, and not upon the individual members of the board. If a selectman is liable in an action by an individual who has sustained damages by reason of the failure of the board of selectmen to keep the highways in good and sufficient repair, as this statute provides, he is liable because he is a member of the board, and the board has been negligent in the performance of a duty imposed upon it.
R. L., § 2,913, provides that highways shall be laid out, made, repaired, and damages to land owners paid by the town in which such highways are situated, except as otherwise specially provided by law. By this statute it is made the duty of towns to keep their highways in repair, and the declaration alleges that such was the duty of the town of Calais. The duty thus imposed is strictly a corporate duty, and is to be performed for the benefit of the public, and not for any gain or advantage to the corporation or its officers. A town can perform this duty only through its agents, and the act of 1884 makes it the duty of the board of selectmen, in certain cases, to perform the duty resting on the town for the benefit of the general public. But no duty is imposed upon, or authority given to, one selectman. The duty imposed and authority conferred are upon the board, and the board can act only by a majority. R. L., § 3, provides that where joint authority is given to three or more, the concurrence of a majority of such number shall be sufficient, and shall be required in its exercise. In re Thorp, 64 Vt. 398, 24 A. 991, in construing this statute, the court held that the duties imposed and authority conferred by statute upon three supervisors of the insane, called for the finding of facts and the exercise of judgment and discretion by a majority of the board, and that the duties imposed and the powers conferred by the statute could not be performed by, or delegated to, one of their number.
A selectman may adjudge that other officers have neglected their duty, and that certain repairs ought to be made, but he is powerless to make them, or cause them to be made, except through the action of the board of selectmen. He may exercise the best of judgment and discretion; he may be zealous and watchful; but he can do nothing for the safety, convenience, or comfort of the public, except as a member of the board. He can vote for or against making repairs, but he must abide by the action of the majority. He cannot order repairs upon the credit of the town; the board only can do this. Hunkins v. Johnson, 45 Vt. 131. To hold selectmen liable to an individual for damages resulting from want of repairs upon a highway is to hold them liable for the omissions of the board. To hold that an individual member of the board is liable for such damages is to hold him accountable for the omissions of the board, or his vote as a member of the board; to hold a selectman accountable for his vote and official acts as a member of the board is a restraint upon the free and independent exercise of the judgment and discretion which public officers are supposed to exercise, and, when selected to office, are presumed to be capable of exercising, and leaves the question as to what his judgment ought to have been, and what discretion he ought to have exercised, to be determined by courts and jurors from the opinion of witnesses; and for error of judgment, or failure to exercise such discretion as courts and jurors think he ought to have exercised, he must be subject to an action and mulcted in damages, for the payment of which the earnings of a lifetime may be required. In determining whether the legislature intended to visit such consequences upon public officers by the enactment in question, it may be profitable to examine the statute providing for selectmen, their powers and duties, the emoluments of the office, and the duties of other road officers.
The office of selectman is a town office, and the person selected must take the oath of office and serve unless he has good reason for not serving, or others are unjustly excused from serving, or pay a fine. R. L., § 2,671. The person elected may have sufficient intelligence to know that he has not the judgment and discretion necessary to perform the duties of the office, but in this State this has not been held to be a legal excuse for not serving. If our statute admits of the interpretation claimed by the plaintiff, the person elected must pay a fine, or be liable for such damages as may accrue to individuals, because nature has not endowed him with the judgment and discretion necessary to perform the duties of the office. But this is not all. If he is liable for the omissions of the board of which he is a member, he must answer in damages for the ignorance and incompetency of his associates; and if the town electing him elect highway surveyors, road commissioners, or agents, he must likewise answer for their refusal or neglect. The law has...
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