Sampson v. City of Boston

Holmes, J. The contract set out in the declaration is alleged to have been made on behalf of the city of Boston by the com 293 missioners referred to, and therefore can bind the city only so far as the commissioners had authority to bind it. The order authorizing the appointment of the commissioners expressly provides that they shall incur no liability for or in behalf of the city unless specially authorized so to do by the city council. The city council is not alleged to have authorized the commissioners to incur the liability sought to be enforced, if the city council could have done so, and therefore the authority, if any, must be found in the later statutes referred to in the declaration. The important act is St. 1885, c. 377. The first section authorizes the commissioners to take land subject to the approval of the mayor; the third makes it the duty of the city, acting by and through the commissioners, to erect a suitable courthouse upon the land taken. No other authority is given. It will be seen that the service which the city is required to perform through the commissioners is one which, in the language of Hafford v. New Bedford, 16 Gray, 297, 302, “ it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community.” If the commissioners had undertaken to construct the building, instead of contracting for its construction, clearly the city would not have been answerable in tort for an accident like the one in question, upon well established principles. Hill v. Boston, 122 Mass. 344. Tindley v. Salem, 137 Mass. 171, 174. Howland v. Maynard, 159 Mass. 434. We are of opinion that the commissioners were not given authority to make the city answerable by contract. Apart from the anomaly which there would be if an agent had the power to impose such a liability indirectly when he could not do it directly, there is another consideration peculiar to this case. We assume that the commissioners had power to bind the city to pay the price of the work to be done, within the limit fixed by § 3, but no other power is given them expressly by the words of the statute. The statute recognizes the order appointing them, and proceeds on the footing that that is the source of their agency. § 1. Therefore the statute should not be taken to remove'the limits set upon their powers by the order, as we have stated, any further than is expressed. Many contracts can be imagined which in one or another set of circum 294 stances it would be convenient to make, in aid of the principal contract for the construction of the building. Whether any of them would be within the power of the commissioners we need not consider. Some at least would not be, and we are of opinion that the present one is on the wrong side of the line, apart from the rather remote possibility that it might require an expenditure of more than the sum mentioned in § 3 and St. 1886, c. 122, § 2. Demurrer sustained.