Spring v. Inhabitants of Hyde Park

• Decision Date: 29 September 1884
• Citation: 137 Mass. 554
• Parties: Mary A. Spring v. Inhabitants of Hyde Park
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

137 Mass. 554

Mary A. Spring v. Inhabitants of Hyde Park

Supreme Court of Massachusetts

September 29, 1884

Norfolk. Contract. The declaration alleged that the plaintiff was the owner of a dwelling-house in Hyde Park, partly occupied by a tenant, and partly by the plaintiff and her family; that the small-pox broke out in the family of the tenant, and two persons were infected with the disease; that the condition of one of the persons was such as not to admit of her removal without danger to her health, but the other could have been removed without such danger; that the board of health of the defendant town, pursuant to the powers granted to it by the laws of the Commonwealth, acting for and in behalf of the town, took possession of the plaintiff's house and the furniture therein as and for a hospital, and made it subject to the regulations of said board as by law provided; that said board occupied, controlled, and used the house as a hospital for the term of six weeks and one day from January 20 to March 4, 1882; and that the defendant owed the plaintiff for such use, occupation, and control the sum of $ 1500.

The defendant demurred to the declaration, on the ground that it did not set forth a legal cause of action; that the board of health, in doing the acts stated in the declaration, was not the servant or agent of the town, but the members were public officers; and that it did not appear that the board of health was authorized to make the contract declared on for or in behalf of the town.

The Superior Court sustained the demurrer, and ordered judgment for the defendant; and the plaintiff appealed to this court.

Demurrer sustained.

S. J Thomas, for the plaintiff.

J. E. Cotter, for the defendant.

Devens, J. C. Allen & Holmes, JJ., absent.

OPINION

Devens, J.

The overseers of the poor of the cities and towns of the Commonwealth have always been treated as public officers, performing the public duties with which they are charged upon their own responsibility. As they are engaged in performing the duty which the statute had imposed upon the towns of relieving poor persons falling into distress within their limits, they may therefore incur expenses or make contracts, within their lawful powers, for which the towns would be liable. Belfast v. Leominster, 1 Pick. 123. Oakham v. Sutton, 13 Met. 192. Ireland v. Newburyport, 8 Allen 73. Smith v. Peabody, 106 Mass. 262. Aldrich v. Blackstone , 128 Mass. 148. The statutes creating or authorizing the creation of boards of health have in a similar way provided for boards which, in the performance of the important duties imposed upon them, act as public officers, but on behalf of the towns by which they are chosen or appointed. St. 1837, c. 244. Rev. Sts. c. 21, Gen. Sts. c. 26. Pub. Sts. c. 80. While it is not provided, in terms, by whom the expenses they are authorized to incur are to be paid, or the contracts they are authorized to make are to be performed, it is necessarily implied that, when expenses are incurred or contracts are made within the lawful scope of their authority, the town is liable therefor. These boards are official bodies, having no interest in the questions before them, no funds in their possession for the performance of the manifold duties with which they are charged, and, unless they might charge the town on behalf of which they act, they would be, from the want of means, absolutely powerless. Springfield v. Worcester, 2 Cush. 52. Salem v. Eastern Railroad, 98 Mass. 431. Winthrop v. Farrar, 11 Allen 398. Watertown v. Mayo, 109 Mass. 315. Taunton v. Taylor, 116 Mass. 254. Labrie v. Manchester, 59 N.H. 120. Careful provision has also been made for the ultimate liability for the expenditures which may be made by any town in the care of infected persons, and for the protection of the public. Gen. Sts. c. 26, § 16. Pub. Sts. c. 80, §§ 40, 83.

We do not, therefore, doubt that, for expenses lawfully incurred, or contracts lawfully made, by the board of health of the defendant town, in the performance of its duties, the town must be held responsible; but it must appear that what the board did was within the scope of its lawful authority. While acting on behalf of the town, it is not an agent of the town in any sense which should make the town responsible for its acts when they exceed its lawful authority, as a principal may often be held liable under such circumstances for the agent whom he appoints. As a general rule, a town is not liable for the unauthorized or unlawful acts of the public officers whom it appoints, although done colore officiis. Thayer v. Boston, 19 Pick. 511, 515. Gordon v. Taunton, 126 Mass. 349. It is not responsible for an assault and battery committed by one of its police officers, although done in the attempt to enforce an ordinance of the city. Buttrick v. Lowell, 1 Allen 172.

It is therefore essential to determine whether the plaintiff's declaration sets forth any act done or contract made by the board of health, for which the town is responsible. The count is termed one in "contract," but it sets forth no elements of a contract or agreement, express or implied, so far as the board of health is concerned. It alleges that the plaintiff owned a certain house described, partly occupied by a tenant and partly by herself; that the small-pox broke out in the family of the tenant; that two persons were infected with it, one of whom could not have been removed without danger; that the board, pursuant to its lawful powers, and acting for and on behalf of the town, took possession of the plaintiff's house and furniture therein as and for a hospital, and made it subject to the regulations of the board; that it occupied, controlled, and used said house as a hospital for the term of six weeks and one day. The count does not allege that the board occupied the house by any leave of the plaintiff, or under any implied promise to pay for the same, but asserts a taking of her premises which would be a trespass unless it were done under authority of law. It concludes by a statement that the defendant owes a certain sum by reason of this taking and occupation, but does not here set forth any implied contract or promise to pay.

It must be deemed, therefore, that the plaintiff bases her action upon the ground that the board of health took possession of and occupied her premises by authority of law, and not by reason of any contract made between it and herself, as she sets forth none. The only allegation of a contract which can be extracted from this declaration is no more than this, that the board of health did a lawful act in seizing, without leave or authority of the plaintiff, her premises and the furniture, and in thereafter occupying and controlling it, and thus, as the act done was lawful, a promise to pay for the same will be implied against the town.

We are thus brought to the inquiry whether the board of health has authority, where a person infected with a contagious disease and too sick to be removed without imminent danger, is found in any house, to...