Hennessey v. City of New Bedford

Knowlton, J.

The only question which it is necessary to consider in this case is whether the facts show conclusively that the work in which the plaintiff was engaged was being done under the authority of the board of mayor and aldermen acting in their official capacity as surveyors of highways. If so, he cannot recover. Walcott v. Swampscott, 1 Allen, 101. By virtue of the statute, they were in fact surveyors of highways, and under the ordinance they had certain duties to perform “in addition to their authority as surveyors of highways,” although much that is included in the enumeration of these duties is also included in the statutes which define the duties of highway surveyors.

Section 3 of the Pub. Sts. c. 52, is as follows: '‘Towns shall grant and vote such sums of money as are necessary for making and repairing highways and town ways, and such money shall be carefully and judiciously expended in making and repairing said ways by the road commissioners, or by the surveyors of highways, each in his own district when the town is divided into highway districts, and in such cases under the direction of the selectmen.” The city of New Bedford specially appropriated eight thousand dollars “ for the purpose of repairing and improving French Avenue, and for no other purpose,” and made no provision as to how or by whom it should be expended. It therefore became the legal duty of the mayor and aldermen, acting as surveyors of highways, to expend it. In what they did, they will be presumed to have acted under the law, in the absence of anything to show the contrary. In the first place, they took fifteen hundred dollars from this appropriation and bought with it a right to get a certain quantity of gravel from a gravel bank.

From the facts that this money was taken from an appropriation which could lawfully be used for no other purpose than the repair and improvement of French Avenue, and that the gravel was afterwards being used on that avenue, no other inference can be drawn than that the gravel was bought to be used there. It is not inconsistent with that inference that the deed is silent in regard to the use which is to be made of the gravel, and that the right of the city to take it continues for fifteen years. No suggestion is made that this was not a reasonable and proper method of procuring materials for the purpose, and the propriety of getting materials in such ways is recognized in the Pub. Sts. c. 49, § 99. The extension of time within which the gravel might be taken beyond the period necessary for making the specific repairs contemplated by the appropriation might have been properly incidental to a purchase which was reasonable in reference to the requirements of French Avenue alone, but which might furnish some surplus gravel for subsequent use in other places. At all events, it has no tendency to show that the purchase was not made in an attempt by the surveyors of highways “ carefully and judiciously ” to expend the money in making repairs and improvements on French Avenue, as they were required to do by the provisions of the statute above quoted.

On the facts agreed, we are of opinion that there is nothing which would have warranted the jury in finding that the mayor and aldermen were acting otherwise than as surveyors of highways in causing this gravel to be dug out for use on French Avenue. See Barney v. Lowell, 98 Mass. 570; Prince v. Lynn, 149 Mass. 193. Judgment for the defendant.