The Worcester spy. [volume] (Worcester, Mass.) 1898-1904, 1899-08-27

jorie to travel through dust.
noted, which was not permissive, rather
than mandatory in it's terms Almost
without exception the phrase used in
legislation is that the municipality 'is
hereby authorized to- or may con-
struct system of sewers.
This makes most important distinc-
ton to my mind and one which places
the liability of the city for all work
done in pursuance of the command of
this statute upon different basis from
that which exists with reference to the
general sewer system of the city. The
entire work of sewer publication is not
only made compulsory upon the city by
thls statute, but section 4 gives to the
supreme judicial court power to enforce
It's provisions in equity, indicating thus
that the service performed by the city
IN TINS respect is not one for private
emolument or advantage, but a public
service, which, although imposed alone
upon the city of Worcester, rebounds
TO the advantage of the entire common
wealth. This provision has been acted
upon and proceedings instituted against
the city, the issue of which is described
at length in the report of the city So
iicitor for the year 1896, and must be
familiar to you. Section of the sta
tute above cited also most significantly
lndleates that what is required of the
city is public function, not private
duty. Its provisions are as follows:
Nothing in this act nor the compli-
ance with its provisions by the city of
worcester shall be construed as an es-
toppel or waiver of any claims that the
city might otherwise legally or equita-
Oily make upon the commonwealth for
compensation or relief or assistance be-
of i11fN nj al
directly or indirectly conferred by said
city upon the commonwealth resulting
from the action hereby required"
chapter 3O4, laws of 1873, was an act
somewhat akin in its general purposes
| TO the Worcester publication act, and
although the question presented by
your inquiry has never been decided in
reference to 1t. the court has several
times referred to the statute as one
passed for the public good and the pre-
sentative of the public health, rather
tnan one for local improvement. Squire
VS.. Somerville, 100 Mass, 579 Attorney
general VS.. Cambridge, 119 Mass, 61S
Inc ground upon which the rule in
Child VS.. Boston and Johnson VS.. Dis
trict of Columbia above cited was es-
tablished was that the city voluntarily
undertook to build and maintain the
particular works in part for the general
certain individuals who might use
| them, and where the expense is de-
frayed either by assessment or by toll
| upon those who use the work. that in
such case the work was not undertaken
| purely as a matter of common public
| convenience and service for the benefit
| OF all alike, and that in doing such work
the municipality acts as an agency to
carry on an enterprise partly CONNER
eial in its character.
70 use the language Of Mr.. Justice
Folger, in Macmillan VS.. Mayor, e. N.
| T., l60, 1854: There are two kinds of
| duties which are imposed upon a rnu-
nicipal corporation. One is of that kind
which arises from grant of special
| power in the exercise of which the mn
nicipality is as a legal Individual; the
other is of that kind which arises, or is
! implied, from the use of political rights
under the general law, in the exercise
OF which it is as sovereign. The for
mer power is private, and is used for
private purposes the latter is
public, and is used for public
purposes. The former is NOT
held by the municipality as one of the
political divisions of the state; the lat
| ter is. In the exercise of the former
power and under the duty of the public
which the acceptance and use Of the
power involves, a municipality is like a
| private corporation, and is liable for a
failure to use its power well, or for an
| injury caused by using ii badly. But
where the power is intrusted to it as
one of the political divisions of the
state, and is conferred, not for the inn
mediate benefit of the municipality. but
as means to the exercise of the sove-
reign power for the benefit Of all citi-
zens, the corporation is not liable for
nonuser nor for misuser by the public
| agents."
Acting upon this principle it has been
! held that many officers appointed and
paid by the city are public officers
whose negligent acts do not render the
city liable. For example, members of
the fire department, highway survey
ors, superintendent Of streets. police
| officers, overseers of the poor, assessors
and collectors of taxes, board of alder
| men, city government, boards OIL
health and health officers, officers con-
structing and repairing schoolbuildings
trustees Of the city hospital, officers Of
a workhouse, road commissioners, court
| house commissioners, servants dis
charging fireworks. 1t has also been de-
| termined that the municipality is m
der no liability for negligent construc-
| ton or use of fire apparatus.
| The leading case in this common
wealth, and indeed the most exhaustive
| discussion anywhere, is In Hill VS.. Bos-
ton, 122 Mass S44. The rule there
stated seems quite apt in its application
| to the question you present. mo pri-
vate action unless authorized by ex-
| press statute, can be maintained
| against a city for the neglect of a pub-
| lie duty imposed upon 1t by law for the
benefit Of the public, and from the per-
Torrance of which the corporation re-
ceives no profit or advantage"
The recent case Of Mahoney VS.. Bos
ton, III Mass 427, which held that the
subway commissioners Of the city OF
Boston were public officers, and the
building of a subway under the pro-
visions Of chapter 54S of the laws of
1894 was public work, strongly favors
the contention that the sewage puri-
fication Of Worcester is a public work
and not one commercial In its character
and for the benefit Of Worcester. This
statute provided that the subway might
be rented to the West End Street Rail-
way Company, and the proceeds oil
such lease should be applied to meet