Fisher v. City of Boston , 104 Mass. 87 ( 1870 )

Gray, J.

Cities and towns are authorized by law to procure and maintain fire-engines and reservoirs of water therefor, and to pay the necessary expense thereof, either by general taxation or out of moneys belonging to the town; because the prevention of damage to buildings by fire is an object which affects the interest of all the inhabitants and relieves them from a common burden and danger, and is therefore within the scope of municipal authority. Allen v. Taunton, 19 Pick. 485. Torrey v. Millbury, 21 Pick. 64. Hardy v. Waltham, 3 Met. 163. For the same reason, they are expressly authorized by statute to put conductors into the pipes of aqueduct corporations for the purpose of drawing therefrom, free of expense, as much water as is necessary to extinguish fires. Gen. Sts. c. 65, § 14. St. 1867, c. 158.

But the extinguishment of fires is not for the immediate advantage of the town in its corporate capacity; nor is any part of the expense thereof authorized to be assessed upon owners of buildings or any other special class of persons whose property is peculiarly benefited or protected thereby. In the absence of express statute, therefore, municipal corporations are no more liable to actions for injuries occasioned by reason of negligence in using or keeping in repair the fire-engines owned by them, than in the case of a town house or a public way. Hafford v. New Bedford, 16 Gray, 297. Eastman v. Meredith, 36 N. H. 284. Bigelow v. Randolph, 14 Gray, 541. Oliver v Worcester, 102 Mass. 489, 499.

It makes no difference whether the legislature itself prescribes the duties of the officers charged with the repair and management of fire-engines, or delegates to the city or town the definition of those duties by ordinance or by-law. However appointed or elected, such persons are public officers, who perform duties imposed by law for the benefit of all the citizens, the performance of which the city or town has no control over, and derives no benefit from in its corporate capacity. The acts of such public officers are their own official acts, and not the acts of the municipal corporation or its agents. In Weightman v. Washington, 1 Black, 39, 49, the supreme court of the United States said: “ Municipal corporations undoubtedly are invested with certain powers, which from their nature are discretionary, such as the power to adopt regulations or by-laws for the management of their own affairs, or for the preservation of the public health, or to pass ordinances prescribing and regulating the duties of policemen and firemen, and for many other useful and important objects within the scope of their charters. Such powers are generally regarded as discretionary, because in their nature they are legislative ; and although it is the duty of such corporations to carry out the powers so granted and make them beneficial, still it has never been held that an action on the case would lie against the corporation at the suit of an individual, for the failure on their part to perform such a duty.”

The duty of extinguishing fires, and of keeping the engines in repair and ready for use, is imposed by the statutes of the Commonwealth, not upon towns and cities, but upon firewards, engineers and other officers, chosen either by the inhabitants, or by the selectmen or mayor, and aldermen. Gen. Sts. c. 24, §§ 4, 6, 7, 9, 13, 26, 29. So where a distinct fire department is established in a village or district, the district may raise money for the purchase of engines and other necessary apparatus, and for incidental expenses; but the charge and management thereof are imposed upon the engineers and other officers, when elected. $§ 33, 40, 41, 43. The firewards, engineers and other similar officers are not the servants or agents of the city or town, but are public officers, for whose acts in their official capacity the city or town or fire district is not made responsible, except in the single case of the pulling down of a building to prevent the spreading of a fire. §§ 5, 41. Taylor v. Plymouth, 8 Met. 462.

Nor is it material that in the city of Boston a fire department has been established and is regulated under a special statute, accepted by the city council. St. 1850, c. 262. The engineers and members of that department are no less public officers, and no more agents of the city, than firewards and similar officers under the General Statutes. In the leading case of Hafford v. New Bedford, 16 Gray, 397, the fire department, for the negligence of whose members the city was held not to be liable to an action, was established and regulated, and its officers and members appointed, under a similar special statute.

This case is not like that of an act done by the city for its own corporate advantage and immediate emolument, as in Oliver v. Worcester, 102 Mass. 489; or in constructing or repairing a common sewer, laid under authority of a statute voluntarily accepted by the corporation, which permits the assessment of a contribution to the expense thereof upon the abutters, as in Emery v. Lowell, ante, 13. But it comes precisely within the rule laid down in Hafford v. New Bedford, and since applied to various similar cases. Walcott v. Swampscott, 1 Allen, 101. Buttrick v. Lowell, Ib. 172. Barber v. Roxbury, 11 Allen, 318. Barney v. Lowell, 98 Mass. 570. Demurrer sustained.