(140 Mass. 381)

HILL and others v. SELECTMEN OF EASTHAMPTON and others.

TOWN-CELEBRATION OF CENTENNIAL ANNIVERSARY.

A town may date its incorporation from the time of its incorporation as a district, and a town incorporated as a district under St. 1785, c. 7, is intended by Pub. St. c. 27, § 11, which authorizes any town to appropriate money "for the purpose of celebrating any centennial anniversary of its corporation.

The facts appear in the opinion.

D. Hill and J. A. Wainwright, for petitioners.

W. G. Bassett, for respondents.

W. ALLEN, J. This is a petition, under Pub. St. c. 27, § 129, to restrain the town of Easthampton from the payment of money voted by the town to defray the expenses of celebrating, in the year 1885, the one hundredth anniversary of its incorporation. The Public Statutes, c. 27, § 11, authorize any town to appropriate money "for the purpose of celebrating any centennial anniversary of its incorporation." By the Statutes of 1785, c. 7, Easthampton was incorporated into a district, "with all the powers, privileges, and immunities that districts in this commonwealth are entitled to, or do or may enjoy, according to law." By the Statutes of 1809, c. 11, the district of Easthampton was incorporated into the town of Easthampton, with all the powers, privileges, and immunities to which towns were entitled, agreeably to the constitution and laws. The question presented is which incorporation was intended by Pub. St. c. 27, § 11. An examination of legislation upon the subject affords an easy answer.

The earliest act incorporating a district which we have found is Prov. St. 1751-52, (25 Geo. II.) c. 14,-3 Prov. Laws, (State Ed.) 598,-erecting the district of Danvers. The circumstances which led to this act, inaugurating the usage of incorporating districts, and the terms of the act, are important. Under the province charter, each town was entitled to at least one representative in the general court. In 1742, Gov. Shirley refused his assent to bills incorporating towns, on account of the increase thereby of the number of representatives. See, on this subject, the notes of the commissioners in 3 Prov. Laws, (State Ed.) 69-72, 665, 666, 745; Prov. Laws, (State Ed.) 93, 626, 629.

The corporate district arose from the necessity to the people of new towns as municipalities, and the refusal of the crown to assent to their erection as separate constituencies. By St. 1751-52, c. 14, it was enacted that two parishes in Salem, and the inhabitants thereof, "be erected into a separate and distinct district by the name of Danvers; and that said inhabitants shall do the duties that are required and enjoined on other towns, and enjoy all the privileges and immunities that towns in this. province by law enjoy, except that of separately choosing and sending one or more representatives to represent them at the general assembly." The form afterwards used in the frequent incorporation of districts under

the charter was that the territory and its inhabitants were erected into a district, and "invested with all the powers, privileges, and immunities that towns are, or by law ought to be, vested with;" sometimes, "or that towns do or may enjoy, * * * that of sending a representative to the general assembly alone excepted." Subsequently a few towns were incorporated under the charter, excepting the right of separate representation, and the form of the acts was the same as in the incorporation of districts, except the designation of "town" instead of "district." In the few districts incorporated since the constitution, the same form was sometimes used, and sometimes the form of the Easthampton act. The statutes of 1761-62, (1 Geo. III.) c. 12,-4 Prov. Laws, (State Ed.) 468,-recited that it had been found expedient to erect districts with the powers of towns, "the privilege of sending a representative to the general assembly only excepted," etc.; and enacted that districts "shall be, and hereby are, subjected to all the duties which towns, by law, are subjected to, and made liable to all the penalties, for neglect or failure therein, which towns, by law, are liable to, and shall, to all intents and purposes, be considered as towns, the privilege and duty of sending a representative to the general assembly only excepted." The statute of 1775 enacted and declared that every exception of the right to send representatives, in any act before passed, incorporating any town or district, should be taken to be void, and that every town and district was entitled to separate representation; and that every district incorporated with the rights of a town, except the right of choosing a representative, should be held to be a town to all intents and purposes. Anc. Chart. 796. The constitution provided, in chapter 1, art. 2, that every corporate town containing 150 ratable polls might elect one representative; and that each town then incorporated, though it did not have that number of polls, might elect one representative, but that no place should thereafter be incorporated with the privilege of electing a representative, unless it contained 150 ratable polls.

The statute of 1785, (chapter 75,) entitled "An act for regulating towns, setting forth their power, and for the choice of town officers, and for repealing all laws heretofore made for that purpose," made no mention of districts except in section 9, by which all districts incorporated before January 1, 1777, were declared to be towns, and districts incorporated after that time, or which should subsequently be incorporated, were declared subject to the act. The Revised Statutes, c. 15, being the chapter concerning the powers and duties of towns, in section 9 re-enacted the provisions of the statute of 1785, (chapter 75, § 9.) The General Statutes, c. 3, § 7, cl. 17, provided that the word "town" might be construed to include cities or districts.

The constitution and legislation since its adoption, as well as before, include districts within the designation of towns in regard to matters other than those relating to the right of representation. The constitution, c. 2, art. 3, provides that the qualified voters within the several towns in the commonwealth shall vote for governor in town meeting, in presence of the selectmen and town clerk. The justices of this court, in

answering in the negative the question whether the inhabitants of unincorporated plantations could vote for governor, say that the word "town," in this provision of the constitution, includes "districts." The justices

say:

"It was formerly the usage of the legislature to incorporate the inhabitants of particular places, not only by the name of districts, with all the powers, privileges, and immunities of towns, except the right of choosing a representative, but also by the name of towns, with the same powers, privileges, and immunities, and under the same exception. From the terms of the incorporation, therefore, it appears that districts are towns, with the same officers, but without the right of electing a representative; * * *for the inhabitants of districts having all the powers, privileges, and immunities of towns, and being by law to be considered as towns to all intents and purposes, except in the election of a representative, whatever privilege, not within that exception, is vested, by the constitution, in the inhabitants of towns, may be enjoyed by the inhabitants of districts." Opinion of Justices, 3 Mass. 568-572.

In legislation concerning the municipal rights and duties as towns, districts, when not specially mentioned, were included under the designation of "towns." For instance, the highway act (St. 1786, c. 81) named only towns as bound to keep highways in repair, etc.; yet there could have been no doubt that districts were included, even if the statute of 1796, (chapter 58,) had not expressly recognized that construction. So, in regard to the selection of jurors, towns only are mentioned until the revision of the acts upon the subject, in the statute of 1812, (chaper 141,) in which towns and districts are both named. See St. 1784, c. 7; 1802, c. 92; 1807, c. 140.

It is obvious that, under the constitution, as well as under the charter, districts were, and were regarded by the legislature as being, towns without the rights of separate representation. If a place incorporated into a municipality contained 150 ratable polls, it was denominated a town; and if less than that number, a district. When a district had acquired the requisite number of polls, the only way in which the legislature could give it the right of electing a representative was by giving it the denomination of a town, by incorporating it as a town. The whole effect of the change was to give to the municipality a corporate right which it did not before have. The fact that this was done by giving to it a new denomination, which involved a grant of the right by the constitution, was not regarded as destroying the identity of the corporation, any more than would the grant of a new power to a corporation by express legislative enactment. The change of denomination meant only the added right of representation; and the effect and meaning of the change was the same, whether it was accomplished by a general law or by a special act of incorporation.

We think that the town of Easthampton is the same corporate municipality which was established in 1785; and that, by its "incorporation," the legislature intended the act which was the commencement of its corporate existence, and not the act which only effected a change of name and the accession of a corporate right, which was afterwards taken from it, and which it does not now possess. Petition dismissed.

(140 Mass. 432)

COMMONWEALTH v. Roy.

Filed January 7, 1886.

(Bristol, ss.)
MUNICIPAL CORPORATION-POLICE REGULATIONS-FAST DRIVING.

Pub. St. c. 53, § 13, providing that a city or town may, by ordinance or bylaw, prohibit persons from riding or driving horses through the streets faster than a specified rate of speed, fixed by the city, does not authorize the imposition of a penalty for driving at a rate of speed that shall, upon inquiry into the circumstances, be found to have been immoderate.

Complaint for violation of an ordinance of the city of New Bedford. At the trial in the superior court there was a verdict of guilty, and defendant alleged exceptions. The facts appear in the opinion.

T. F. Desmond, for defendant.

E. J. Sherman, Atty. Gen., for the Commonwealth.

W. ALLEN, J. The Public Statutes, c. 53, § 13, provide that "a city or town may, by ordinance or by-law, prohibit persons from riding or driving beasts of burden, carriage or draught, upon any of the streets or ways for public travel therein, at a rate of speed which it deems inconsistent with the public safety or convenience, under such penalties as it may impose for breaches of other ordinances or by-laws." The complaint charges a violation of an ordinance of the city of New Bedford which provides that "no person shall ride any horse, or drive any horse or horses attached to any carriage of any description, either of burden or pleasure, or cause the same to be rode or driven, in any street, lane or alley, or over any bridge, in the city, at an immoderate gait, so as to endanger or expose to injury any person standing, walking, or riding in or on the same."

The defendant moved to quash the complaint, for the reason that the ordinance was not authorized by the statute, which motion was overruled. The statute authorizes a city to prohibit persons, under a penalty, from riding or driving in its streets faster than a specified rate of speed fixed by the city. Perhaps, under this statute, a city might prohibit driving at a particular gait, as at a trot or gallop, as in Com. v. Worcester, 3 Pick. 462; but it clearly does not authorize the imposition of a penalty for driving at a rate of speed or at a gait that shall be found, upon inquiry into the circumstances, to have been immoderate, so as to have exposed persons to injury. The intention of the legislature was that the city should determine what act should be unlawful, not that it should annex a penalty to an act otherwise unlawful. The latter would partake, rather of the character of a law than of a by-law or city ordi

nance.

We think that the statute was intended to prescribe the manner in which towns and cities can prohibit, under penalties, fast driving in their streets, and that no authority for the ordinance in question can be drawn from Pub. St. c. 27, § 15, authorizing towns to make by-laws for the purpose of maintaining internal police thereof. Exceptions sustained.

(141 Mass. 189)

POST v. CITY OF BOSTON.

Filed February 25, 1886.

(Suffolk, ss.)
MUNICIPAL CORPORATIONS-STREETS-DEFECT CAUSING INJURY.

In an action of tort for personal injuries, caused by an alleged defect in a highway, it is a question for the jury to determine upon the facts, whether the defect was such a one as the defendant was bound to use reasonable care, diligence, and prudence to guard against.

This was an action of tort, brought to recover damages for injuries sustained by reason of an alleged defect in Sunner street, in East Boston. At the trial it appeared that on an afternoon of September, 1882, plaintiff was walking on said street; that it had been raining hard, and was then raining; that, when they reached the corner of Orleans street, they found that there was a large quantity of water on both Sumner and Orleans streets; that plaintiff saw in the street, just at the side of the crossing, what appeared to be a pile of dirt or a plank in the water, and stepped upon it, and went into a cess-pool up to her arm-pits, and received the injuries complained of; that the cover of the cess-pool was made of wood, and was not fastened down, resting only upon the rabbets in the stone curb around the entrance of the cess-pool, and was liable to float off in a heavy rain; that the cess-pool was situated in the street, close to the crossing. The court allowed the plaintiff, against the defendant's objection, to introduce evidence that on many occasions during one year prior to the accident the cover had been off, and the witness, on crossexamination by the defendant, said he would swear to five times within a year, in times of rain. The defendant asked the court to rule, among other things, that a liability to become a defect is not a defect. Notice to the city of such liability is not notice of a defect. The existence of such a liability is not the existence of a defect. If the cover was safe until the rain came, and, after the rain, the city did not know the cover was off, and did not have time, after the defect existed, to find out about it and repair it, then the jury should find for the defendant. The court refused to give the instruction. The jury found for the plaintiff, and the defendant alleged exceptions.

T. M. Babson, Asst. City Sol., for defendant.

Stillman B. Allen and Joseph Bennett, for plaintiff.

C. ALLEN, J. Under the General Statutes, c. 44, § 22, a person who received injury through a defect in a highway might recover damages of the town by law obliged to repair the same, if such town had reasonable notice of the defect, or if the same had existed for the space of 24 hours previous to the occurrence of the injury. Under this statute it was held that it was the intention of the legislature to limit the liability to cases where the precise defect which caused the injury was known to the town, or had existed for 24 hours; and that, if the defect had not existed for 24 hours, the town could not be held liable on the ground that its agents had constructed or repaired the way so negligently that it was reasonable