Goddard v. Inhabitants of Petersham

• Decision Date: 29 January 1884
• Citation: 136 Mass. 235
• Parties: Forester Goddard v. Inhabitants of Petersham
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 235

Forester Goddard v. Inhabitants of Petersham

Supreme Court of Massachusetts

January 29, 1884

Argued October 5, 1883

Worcester.

Judgment for the defendant.

F. A Gaskill, (T. B. Dunn with him,) for the plaintiff.

F. P Goulding, for the defendant.

Holmes J. Field & W. Allen JJ., absent.

OPINION

Holmes, J.

This is an action to recover $ 47.88, for money paid by the plaintiff for labor upon the highways of the defendant town. The money was expended after the plaintiff had been elected a highway surveyor, but before his district had been assigned to him for the year, according to the declaration, in April, (Pub. Sts. c. 52, § 4,) and it was done without the direction or knowledge of the selectmen. It is found that thirty dollars of the money was expended judiciously, but it does not appear that there was any special emergency or any case contemplated by the Pub. Sts. c. 52, §§ 5, 6. Subsequently, the selectmen wrote to the plaintiff, declining to allow his whole bill, but offering to refer it to the town, and enclosing an order for thirty dollars; assigned him his district, which was that in which the work was done and the same that he had had the year before; and notified him that his proportion of money to be expended on the highway was fifty dollars. The plaintiff sent the order back, because the amount was less than he claimed, and brought this suit.

It is clear that the voluntary payment by the plaintiff did not of itself give him any cause of action against the town. Sikes v. Hatfield, 13 Gray 347, 352. Armstrong v. Wendell, 9 Met. 522. Loker v. Brookline, 13 Pick. 343, 349. Jones v. Lancaster, 4 Pick. 149. It was suggested, to be sure, that these cases were decided when the surveyor and other tax-payers each worked out his own taxes, and that they are no longer applicable now that the whole tax is levied in money, which is to be expended by the surveyors. It is said that the St. of 1871, c. 298, made an entire change in the law. But that act only put an end to road taxes payable in labor, and the sections which previously indicated the extent and limits of the surveyors' power are still retained. Pub. Sts. c. 52, §§ 5, 6. See Gen. Sts. c. 44, §§ 13, 14. The cases above cited have lost none of their pertinency, and it is enough to refer to them. Something was said, in the argument, of the surveyor's liability for any deficiency in the highways occasioned by his fault or neglect. Pub. Sts. c. 27, §§ 127, 128. But the liability was substantially the same when the foregoing cases were decided. See Rev. Sts. c. 15, §§ 82-84; Gen. Sts. c. 18, §§ 75, 76. There is no hardship, for the surveyor's power is the measure of his duty. Todd v. Rowley, 8 Allen 51, 56.

The fact that the selectmen subsequently sent the plaintiff an order for thirty dollars cannot help him, for several reasons.

The town had not neglected to vote a sufficient sum of money, nor failed to provide effectually for repairing the ways; and therefore the case had not arisen in which the selectmen would have been authorized by the Pub. Sts. c. 52, § 6, to consent to the plaintiff's employing persons in his district if he had had a district at the time.

If such a case had arisen, a subsequent ratification of the surveyor's acts by the selectmen would not have been sufficient. Emerson v. Newbury, 13 Pick 377, is not an authority upon the present statute. ...