Jensen v. City of Waltham
| Decision Date | 15 June 1896 |
| Citation | 166 Mass. 344,44 N.E. 339 |
| Parties | JENSEN v. CITY OF WALTHAM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Allin &
Mayberry, for plaintiff.
A Lyman and Mayor & C.A. Williams, for defendant.
In McCann v. City of Waltham, 163 Mass. 344, 40 N.E. 20, the negligence charged was that of the assistant superintendent of streets, while engaged in repairing a street that had been laid our previously. In this case it is the negligence of a laborer employed by the superintendent in the construction of a new street, which had been laid out by the board of aldermen, and which they had directed the superintendent to build. It was held in McCann's Case that the assistant superintendent was a public officer. The question here is whether the superintendent ceased to act as a public officer because he was engaged in building a new street instead of repairing an old one. By the charter, the administration of all the fiscal, prudential, and municipal affairs of the city with the government thereof is vested in the mayor and one council, of 21 members, called the "Board of Aldermen." St.1884, c. 309, § 2. The board of aldermen has power, among other things, "to lay out, alter discontinue, locate anew, fix the grade of, or order repairs in, any highway, street, or townway, and to estimate and assess the damages any person may sustain thereby ***; to act upon all matters in which authority is given by general laws relating to streets, sidewalks, drains, and sewers, and the taking of land from which may be taken earth and gravel; and generally shall have and exercise all the powers of city councils and boards of aldermen under general laws, and may by ordinance, provide the manner in which said powers shall be exercised." Id. § 15. It is also provided by the charter that the board of aldermen shall elect a board of street commissioners, which shall organize annually by the choice of a chairman and clerk, and which shall appoint also annually a superintendent. Id.§ 23. Provision is also made for other administrative boards. The chairmen of the boards of street commissioners, of the overseers of the poor, and of the water commissioners, and a member of the school committee appointed for that purpose, are entitled to seats with the board of aldermen, and have the right to discuss matters relating to their respective departments, but cannot vote. Id. § 31. So far as the organization thus provided for relates to streets, it is obvious that it is established for the purpose of enabling the defendant to...
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