Hall v. Concord

*369 Blodgett, C. J. The defendants’ only duty in respect of the highway upon which the plaintiff was injured while in the exercise of the public right of using it, was the statutory one to maintain it in suitable repair, and this duty it is conceded they properly performed. The sole ground of complaint is the careless operation of the defendants’ steam-roller by workmen engaged in macadamizing the highway at the time of the plaintiff’s injury, and who were presumably employed by the commissioner of highways. Assuming that “a municipal corporation is liable at common law for injuries to private rights resulting from the negligent performance of a public duty by agents and servants whom it has the power to direct and control” (Rhobidas v. Concord, 70 N. H. 90), the act of which the plaintiff complains was not the act of the defendants. By the special legislative enactment of 1891 (Laws 1891, c. 186), the whole territory of the defendant city is constituted one highway district and placed under the superintendence of a commissioner of highways, who (s. 1) “ shall have all the powers, perform all the duties, and be subject to all the liabilities which by law appertain to surveyors of highways, except so far as the same are changed by the provisions of this act.” Sections 2 and 3 provide for his election by the city council, make him sxrbject to removal by the council at their discretion, and place him under the direction of the mayor and aldermen with reference to the expenditure of money and accountability therefor; and then, by section 4, it is imperatively declared that “he shall have charge of the roads and bridges in the care of the city, and all repairs thereon shall be under his direction.” Possessed of the broad and exclusive authority conferred by section 4, in respect of roads and bridges in the care of the city and all repairs thereon, tire defendants’ commissioner of highways is not to be regarded as their agent or servant, but as a public officer deriving his authority from the legislature, which possesses the paramount control over all the public highways within the state, and may place their management and repair in the hands of such agencies as it may deem to be most fitting. Neither the city nor the board of mayor and aldermen can direct or control the commissioner in the performance of the duties so entrusted to him. It is for him alone to determine in what manner and through what instrumentalities repairs shall be made,' and to do all other things necessary in their direction, control, and management. This being so, for his misfeasance, or that of his employees, the defendants are not liable. Rhobidas v. Concord, supra, 117; Gross v. Portsmouth, 68 N. H. 266, 267, and authorities cited; Downs v. Hopkinton, 67 N. H. 456; Wakefield v. Newport, 62 N. H. 624, 625; and numerous other cases. *370 No more are the defendants liable because the repairs were being superintended by the mayor and the commissioner jointly. The general statutory provision, that money for highway repairs shall be expended by the selectmen or surveyors of highways, or agents appointed for the purpose -by the selectmen (P. S., c. 73, s. 6; Laws 1899, c. 29, s. 3), has no application to the city of Concord; and plainly, the board of mayor and aldermen had no power to make the Eddy contract, because by 'the city charter and by express statutory provisions the administration of all the fiscal, prudential, and municipal affairs of the city is vested in the city council, consisting of the mayor, board of aldermen, and board of common council (Charter of Concord, Laws 1849, c. 835, ss. 2, 14; P. S., c. 50, s. 1; Kelley v. Kennard, 60 N. H. 1, 3), and for this reason also the mayor and aldermen could confer no authority upon anybody in the superintendence of the repairs and improvements in question. But apart from these considerations, the Pleasanhstreet highway was then an existing highway “ in the care of the city,” and consequently the commissioner had charge of it, and the direction of all repairs 'upon it, by virtue of the specific and mandatory provisions of the act of 1891, which cannot be construed to mean that the commissioner has no jurisdiction as a public officer except when the mayor and aldermen omit to appoint agents to do the work imposed upon him by that act. The joint superintendence of the mayor in the making of the repairs did not constitute an assumption by the city of their control and direction (Bowden v. Rockland, 96 Me. 125); and, moreover, the legitimate inference from his alleged supervisory action over the work is that he was exercising the power as to the expenditure of money conferred on the board of mayor and aldermen by the act of 1891. But if he actually assumed to undertake the joint direction of the work, the defendants are not responsible for his performance of that which he had no power to do, and which they had no power to authorize, Gross v. Portsmouth, supra, and authorities there cited. The plaintiff’s contention that the defendants are liable on the ground that the work in progress on the highway when he was injured was constructive work which the defendants were at liberty to do directly by agents or servants, or indirectly through contractors, the same as in the original construction of a highway, is not based on anything -appearing in the reserved case, nor is it well founded. The fact that Mrs. Eddy induced the board of mayor and aldermen to make an extraordinary expenditure of-money on the highway did not transform the mayor and the commissioner into servants of the city instead of public officers, nor make the work any less a governmental one (Colwell v. Water *371 bury, 51 Atl. Rep. 530; Bowden v. Rockland, supra); and the extent of the work, or its expense, furnishes no test by which to determine the capacity in which they acted. So, too, the further fact that the work resulted in what the plaintiff terms “ a boulevard”— whatever that may mean — has no tendency to show that the defendants were constructing a new highway. The highway existed before this work, and it exists now — the only change being in its improved condition as the result of regrading and widening it. Such work constitutes “repairs” within the fair intent and meaning of the act of 1891, which applies to and includes everything relating to the superintendence, care, and repair of all public highways within the city and to all work done thereon, constructive or otherwise,— the only exception, if' any (a point not now in question), being that highways laid out since the passage of that act may perhaps still be built by the city through agents or contractors. It is further contended that the defendants should be held liable because the improvements made on the highway, which every person has the right to use regardless of his residence, were for the “special benefit and profit” of the city. This assumption is both misleading and unwarranted. In precisely the same sense it might be said that all repairs and improvements of highways therein are a- special benefit- to the city, as distinguished from the general public. But no such distinction can be made. The legislature imposes on municipalities, whether they wish it or not, the burden of maintaining highways, not for their own but for the public benefit and welfare (Wooster v. Plymouth, 62 N. H. 193, 215); and if they choose to expend in their maintenance more than may be necessary to render them suitable for the public travel, they do not, in a legal sense, derive any special benefit, profit, or advantage therefrom in their corporate capacity beyond that derived by the public. And if the contrary were true, and whether the money with which highway repairs and improvements are made is provided by the municipality or is donated by an individual, no reason is afforded why the expenditure of the money shall not be made by the public officer charged by law with the direction and control of all such repairs and improvements. Nor are the defendants liable because of their ownership of the roller. There is no ground for claiming- that at the time of the plaintiff’s injury the roller was a nuisance (Cool. Torts 617), or that it was defective, or that it was not being used for its intended purpose, or that the purpose was not a proper and lawful one. The single allegation of wrong is that the workmen so carelessly operated the roller that the injury to the plain *372 tiff followed. Conceding this to be so, it falls far short of entitling him to a recovery. One insuperable difficulty, at least, remains: the workmen were not the defendants’ servants, as is abundantly settled by repeated and familiar decisions of this court. Finally, it may be observed as to the doctrine of “ ratification by acceptance ” invoked by the plaintiff, that his injury not having resulted from a defective construction of the highway occasioned by the work done upon it under the contract, no subsequent acceptance of the work or ratification of the contract by the city would entitle him to a recovery upon the authority of Carpenter v. Nashua, 58 N.H.37, 38. Exception overruled. Parsons and Walker, JJ., concurred: Chase, J¡, dissented.