Postal Telegraph-Cable Co. v. City of Worcester

Knowlton, C. J. By the St. 1902, c. 372, provision is made for the removal of wires and electrical appliances from the public [322] streets in the central portion of the city of Worcester. The act authorizes a designation by ordinance of an officer or officers of the city, who are given full power and authority and are directly required by the statute to carry out the provisions under which these wires and appliances are to be removed from the streets, and placed underground. The city itself is not authorized to take any action in regard to the removal of any of these wires or appliances, other than to designate by ordinance the officer or officers that the statute calls for. These officers, when designated, are public officers, who derive their power and authority from the statute, and are not subject to direction or control by the city in any way. They represent the Commonwealth, for the public good. The city is not responsible for their acts nor liable for their omissions. There is a long list of decisions in which this doctrine, in its application to similar officers, has been established and maintained by this court. McGinnis v. Medway, 176 Mass. 67. Dunbar v. Boston, 112 Mass. 75. Buttrick v. Lowell, 1 Allen, 172. Kimball v. Boston, 1 Allen, 417. Rossire v. Boston, 4 Allen, 57. Tindley v. Salem, 137 Mass. 171,174. McCarthy v. Boston, 135 Mass. 197, 200. It is not material that the designation of the officers is required to be by city ordinance. In Fisher v. Boston, 104 Mass. 87, 93, Mr. Justice Gray said: “ It makes no difference whether the Legislature itself prescribes the duties of the officers charged with the repair and management of fire engines, or delegates to the city or town the definition of those duties by ordinance or by-law. However appointed or elected, such persons are public officers, who perform duties imposed by law for the benefit of all the citizens, the performance of which the city or town has no control over, and derives no benefit from in its corporate capacity. The acts of such public officers are their own official acts, and not the acts of the municipal corporation or its agents.” This is even more plainly true of the officers acting under the statute before us. It is not material on this point that there is a right of appeal from these officers to the mayor and aldermen. The mayor and aldermen, in dealing with such an appeal, would not be the agents of the city, but would act as a quasi judicial board of officers, as they do in most cities in. laying out streets and sewers and in the performance of some other public duties. [323] The suit before us is a bill in equity to obtain an injunction against the city of Worcester, to restrain it “ from enforcing or endeavoring to enforce . . . the provisions of chapter 372 of the Acts of 1902,” etc. A board of officers has been designated by ordinance by the city council of Worcester, in accordance with the terms of the statute. Upon the presentation of an agreed statement of facts and an offer of other evidence by the plaintiff, the single justice ruled that, upon this statement and the offer of evidence, the bill could not be maintained, and he reported the case to the full court. If the ruling was correct, the bill was to be dismissed; otherwise, such order or decree was to be entered as the law required. The city of Worcester has no power to enforce the provisions of this statute, or to compel the plaintiff to remove its line of telegraph wires from its present location in the city, and place it or any portion of it underground. For the reasons stated above, the city is not a proper party to a proceeding for such relief as the plaintiff seeks. The ruling was correct and the bill must be dismissed. Many other questions of law have been raised and argued by the parties, which we have no occasion to consider. It does not appear on what ground the ruling was made by the single justice, nor is it important to know. It may have been made upon different grounds. The plaintiff’s counsel suggests that, if the suit is brought against the wrong party, the terms of the report should be disregarded and the report discharged, and the plaintiff be given an opportunity to amend before a single justice. This suggestion was not made until after the defendant’s brief had been filed, and it first appears in the plaintiff’s supplemental brief. We are of opinion that the terms of the report should be followed. A decision in this case will not affect the rights of the parties in a suit brought against other defendants, and, if an amendment were allowed in this case, no progress could be made against such defendants without giving them an opportunity to be heard, as upon the filing of a new bill. Bill dismissed.