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

ments to meet interest on bonds issued
for its construction, and the surplus
contributed to the general revenue OF
the city for the maintenance of its pub
Tic parks; yet Notwithstanding these di-
rect pecuniary advantages and returns
to the city OF Boston. 1t was determined
that the enterprise was not private in
its character, but essential government
al
1t is also to be considered that while
no ruling has ever been made by the
law department of the city of Worces-
ter, with reference to the subject mat
ter, 1t is nevertheless true as a matter
of fact that no assessment has ever
been levied by the city of Worcester for
any work done in pursuance of the
statute of 1856 above cited.
The ground on which liability of mu-
inequalities for negligence in connec-
tlon with sewer work has been general
~ put by the court, is well illustrated
by the language used in Coan vs. MARI
borough, 1874 Mass, 206, on page 20S;
1t has long been settled by our deci-
slons that because sewers are built and
maintained, partly for the private bene-
mt and advantage of the abutters who
pay in part for such advantages, and
because the charge of sewers is not an
obligation imposed by law without the
assent of the municipality, but volun-
tarlly assumed, municipality is liable
TO a private action for negligence in
building or maintaining them"
1t Will be seen that the test thus stat
ed does not apply to the sewers con-
strueted or maintained by the city of
worcester for its publication purposes
IN either of these particulars. The
work is undertaken, not voluntarily
put in response to mandate from the
/ D11fn l,,r
the supreme court; the abutters gain
no advantage from it's construction, but
are caused extra expense in many in
stances because of changes in connec.
lions; and as matter of practice the
| city has not undertaken thus far to re-
lmburse itself by assessment.
WITHOUT infringing at all upon the
well settled principle of liability fol
neglect in maintenance and care OF
sewers established in Child VS.. Boston
and the other cases above cited, a clear
distinction may be drawn between that
principle and the one governing the liza
blilty of the city of Worcester for the
construction and maintenance and re-
pair OF its sewers, so far as they are
constructed for the purposes of it's puri-
ncation plant. 1t is significant that the
only other statutes in this common
! wealth, so far as l am aware, which are
mandatory in their terms-chap 439 OF
the laws of 1899 (see laws of 1899, c.
! 4Z4) known as the metropolitan sewage
act, and laws of 1898, C. 557, with refer
ence to the Met. water board-contain
no provision for damages like that es-
tabhsned by common law upon cities
and towns for maintenance of sewers,
and indeed one of it's advantages is that
1t relieves the cities and towns from
such liability, directly or indirectly.
kingman, petitioner 1853 Mass, 566, SIS.
These considerations bring my mind
TO the conclusion that even though the
work is undertaken by servants of the
| city, who in some other respects may
be agents of the city and not public
officers, yet taking into account the his
tory OF the agitation for the purifica-
ton of the sewage of Worcester and the
plain terms of the statute of 1886, which
indicate that the work is undertaken
for the benefit of the entire Blackstone
valley and as health measure the
sewage publication works of Worces-
ter are public work in such sense that
Tor the negligence of its officers in con-
nection Herewith the city is not liable
and that the rule of Hill VS., Boston,
Howard VS.. Worcester and other cases
of that class govern its responsibility.
II, therefore, it be assumed that the
injury to the petitioners, referred to in
your order, resulted either from the
negligence of the city in adopting the
general plan of sewage or from the
negligence of some officer of the city
in constructing, repairing or maintain
ing some portion of the sewers directly
connected with the publication plant
feel bound to advise you that the citv
is not liable therefor, I am confirmed in
this conclusion by reference to an opin-
ION confidential in character, given by
my distinguished predecessor in the
office of city solicitor, which has been
| called to my attention for the first time
| since the preparation of this commune
cation, and which reaches the same re-
| suit, namely, that the city is not under
any liability for sewage over1ows of the
character described in these petitions
Yours very respectfully,
Arthur P. Rugg,
CITY Galini4n..