Bean v. Inhabitants of Hyde Park

Morton, C. J. We assume, for the purposes of this case, that the county commissioners of Norfolk, in 1873, relocated River Street in the town of Hyde Park, and determined that the town should construct the way, within three years, according to the location. It became the duty of the town to construct 247 the way according to the order of the commissioners, and, if it did not do so, the commissioners could cause the way to be completed, pay for it out of the county treasury, and issue a warrant against the town for the collection of the expense. Pub. Sts. c. 49, §§ 60, 61. But the selectmen, or highway surveyors, have no authority to construct the way and pledge the credit of the town therefor, unless they are authorized by a vote of the town. As stated in Smith v. Cheshire, 13 Gray, 318, “ They are not general agents. They are not clothed with the general powers of the corporate body for which they act. They can only exercise such powers and perform such duties as are necessarily and properly incident to the special and limited authority conferred on them by their office. They are special agents, empowered to do only such acts as are required to meet the exigencies of ordinary town business.” It is difficult to define with precision the powers of selectmen. But we have no doubt that it is not within their ordinary powers to proceed, without any special authority, and build a way ordered by the county commissioners. In the case at bar, there was no vote of the town authorizing the selectmen to finish River Street, or to contract with the plaintiff to work upon it. The vote to appropriate “ $7000 for highways ” did not confer such authority. It was intended for the maintenance and repairs of existing highways, and cannot be construed to authorize the selectmen to pledge the credit of the town for building a new road according to the order of the commissioners. The work for which the plaintiff sues was not work done in the ordinary repairs of the highways; and the Superior Court properly ruled that he could not recover of the town for it. Clark v. Russell, 116 Mass. 455. Todd v. Rowley, 8 Allen, 51. Exceptions overruled.