Clark v. Inhabitants of Russell

Colt, J. The obligation of towns to repair highways is created, and the mode of fulfilling it provided for, by statute. The duty may be performed by surveyors regularly chosen, or by work done under contracts with the surveyors, or with others, provided the surveyors or other agents are first duly authorized by the town to make such contracts. Gen. Sts. c. 44, §§ 11, 13. The plaintiffs worked in repairing highways under a contract with the selectmen of Russell, by which they were to be paid a fixed sum for keeping one half the' highways and bridges of that town in repair for the current year. No highway surveyors had been chosen, and under the instructions given the jury must have found that there was no sufficient provision made by the town, by contract or otherwise, for the duty required, and that the roads were in fact out of repair at the time the contract was made. But there was no vote of the town authorizing the selectmen to make a contract. The judge ruled, in substance, that upon this state of facts they were authorized to make this contract. This is the only question open upon these exceptions. The powers and duties of selectmen are not distinctly defined by statute. They can only exercise the powers which are incident to the limited authority conferred upon them by their officej they are not general agents, clothed with all the powers of the corporate body for which they act; they are to be regarded rather as special agents, with power to do such acts as are required to meet in the ordinary way the exigencies that may arise in town affairs. The extent of this authority may indeed depend largely upon long continued usage and custom. It is not necessary here to define carefully its limits, or to say that in a case where no other provision is made, the selectmen, in a temporary emergency, may not employ labor in the repair of highways, in order to [458] secure the safety of the public, and the protection of the town from liability. It is enough that, without express authority, they cannot make contracts like this. The statute provisions make it plain that such contracts, to be binding on the town, can only be made by surveyors of highways, or agents expressly authorized. Smith v. Cheshire, 13 Gray, 318. Hawks v. Charlemont, 107 Mass. 414. Goff v. Rehoboth, 12 Met. 26. Loker v. Brookline, 13 Pick. 343, 350. Butler v. Charlestown, 7 Gray, 12. Walpole v. Gray, 11 Allen, 149. Exceptions sustained.