Loring, J.
[After the foregoing statement of the case.] 1. It is settled in this Commonwealth, (Webber v. Davis, 5 Allen, 393; Commonwealth v. Kane, 108 Mass. 423; Commonwealth v. Tobin, 108 Mass. 426,) and elsewhere, (Wigmore on Evidence, § 2535,) that in general it is not necessary, in proving that a man is a public officer, to produce his commission. It is enough to prove that he has acted as such. And it accordingly was decided in Commonwealth v. Wright, 158 Mass. 149, that it was competent for the officer himself to testify that he was such public officer. In that case the court did not find it necessary to decide whether such evidence, not accompanied by evidence that he had previously publicly performed the duties of the office in question, would be sufficient to warrant a finding that he actually held the office by legal appointment. The testimony of the defendants that they were members of the board of health of the city of Everett was therefore competent. As the case must in our opinion go back for another trial we do not find it necessary to decide the question left open in Commonwealth v. Wright, ubi supra, on which the correctness of the last ruling asked for depends.
2. The plaintiff’s land was used by ambulances carrying patients to the hospital and taking away from it the bodies of patients who had died there. A rope was put around the plaintiff’s driveway, which was thereby brought within the hospital grounds, and the plaintiff and his tenants were excluded from the use of it. It is admitted that this was done Without the plaintiff’s permission and without action under R. L. c. 75, § 46. We assume that if a case of smallpox had broken out in the plaintiff’s house his driveway could have been roped off in regulating the disease on his premises as a menace to the public. But that is not the case we have here. What we have here is a case where a smallpox hospital was located on land hired' for the purpose, adjoining the plaintiff’s land, and in a building sixteen and one half feet distant [87]*87from one of the plaintiff’s buildings and nineteen feet from another, and where the plaintiff’s driveway and apparently other portions of his land have been appropriated to the use of the hospital to the exclusion of the plaintiff and his tenants. It appears that the defendants did this without his (the plaintiff’s) consent, and without action under R. L. c. 75, § 46.
If this was done by the defendants or by persons in their presence and under their direction, (Elder v. Bemis, 2 Met. 599,) they are liable. Hersey v. Chapin, 162 Mass. 176. We think that the jury would have been justified in finding that these acts were done by the defendants or under their direction by persons in their presence. It is to be noted that the defendants did not put in any evidence dealing specifically with this claim of the plaintiff. All that they testified to was “ that what they did in the establishment and maintenance of the hospital, they did as members of the board of health of the city of Everett.” As members of the board of health they had no right to take the plaintiff’s land without taking action under R. L. c. 75, § 46.
The second and third rulings asked for should have been given.
3. More than that, it is not true that a public officer is exempt from liability for all acts done in his official capacity. In an action brought against a highway surveyor for digging a watercourse in a highway which incommoded the plaintiff whose land abutted on the way in his access to that land, it was held that it was a defence that the watercourse was made by the defendant as a highway surveyor, and that it was not competent to introduce evidence that the digging of the watercourse was not necessary in the repair of the way. Benjamin v. Wheeler, 8 Gray, 409; S. C. 15 Gray, 486. So in an action against a surveyor by the owner of the fee in the way, for taking gravel from a bank within the way and using it to repair another public way, it was held that the surveyor’s right to exemption did not depend upon the jury’s deciding that he took the gravel from the bank for the purpose of repairing that part of the way, for that would be “substantially equivalent to trying the questions of the necessity of the repairs and the motives and good faith of the surveyor, which, as has already been decided, at a former stage of [88]*88this case, cannot be done.” Denniston v. Clark, 125 Mass. 216. On the other hand it was held in the recent case of Moynihan v. Todd, 188 Mass. 301, that a highway surveyor was liable for damage caused by his personal negligence in blasting a rock, which as a highway surveyor he had decided should be removed from the highway of which he had charge.
The distinction is the distinction laid down in Child v. Boston, 4 Allen, 41, between the exercise by a highway surveyor of the discretion put upon him by law as to what ought to be done, (acts which are quasi judicial or legislative in character,) and acts done by the surveyor in carrying into effect what in his discretion he had decided ought to be done (ministerial acts done in carrying out a plan adopted in the first capacity).
In the case at bar in fixing on the location of the hospital the defendants were exercising a discretion which the Legislature by It. L. c. 75, § 42, had required them to exercise as public officers. Manning v. Bruce, 186 Mass. 282. Frazer v. Chicago, 186 Ill. 480. Their decision on the question being quasi judicial or quasi legislative was final. It was not competent to make them liable for a mistake or for negligence in the exercise of it, that is, in the location of the hospital. Benjamin v. Wheeler, 8 Gray, 409; S. C. 15 Gray, 486. Denniston v. Clark, 125 Mass. 216. See also Dillingham v. Snow, 5 Mass. 547; Turner v. Dartmouth, 13 Allen, 291; Upham v. Marsh, 128 Mass. 546; Williams v. Adams, 3 Allen, 171. Evidence that the defendants were negligent and careless in locating the hospital was rightly excluded. The first, fourth, sixth and tenth rulings requested were properly refused.
Whether the judge was right in excluding evidence that “the defendants had maintained the hospital in a negligent and careless manner and that their carelessness in this respect made the hospital a nuisance to the plaintiff” depends upon whether this was an offer to prove that they were personally guilty of a misfeasance in the performance of a ministerial duty, like negligently setting off a blast in removing a rock from a highway, which it had been properly decided was to be removed.
If the defendants were personally guilty of a misfeasance in [89]*89such a matter and the hospital was in consequence a nuisance, the case comes within Moynihan v. Todd, 188 Mass. 301.
In connection with this offer of evidence it is to be borne in mind that there was evidence, that “ after the hospital had been in operation a couple of months, eight or nine cases of smallpox arose in six or seven houses in the immediate vicinity, including the plaintiff’s house on Everett Street, and the evidence introduced by the plaintiff tended to show that smallpox was a dangerously contagious disease, and that the smallpox cases treated at the hospital caused the cases which arose in these houses in its neighborhood.”
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Loring, J.
[After the foregoing statement of the case.] 1. It is settled in this Commonwealth, (Webber v. Davis, 5 Allen, 393; Commonwealth v. Kane, 108 Mass. 423; Commonwealth v. Tobin, 108 Mass. 426,) and elsewhere, (Wigmore on Evidence, § 2535,) that in general it is not necessary, in proving that a man is a public officer, to produce his commission. It is enough to prove that he has acted as such. And it accordingly was decided in Commonwealth v. Wright, 158 Mass. 149, that it was competent for the officer himself to testify that he was such public officer. In that case the court did not find it necessary to decide whether such evidence, not accompanied by evidence that he had previously publicly performed the duties of the office in question, would be sufficient to warrant a finding that he actually held the office by legal appointment. The testimony of the defendants that they were members of the board of health of the city of Everett was therefore competent. As the case must in our opinion go back for another trial we do not find it necessary to decide the question left open in Commonwealth v. Wright, ubi supra, on which the correctness of the last ruling asked for depends.
2. The plaintiff’s land was used by ambulances carrying patients to the hospital and taking away from it the bodies of patients who had died there. A rope was put around the plaintiff’s driveway, which was thereby brought within the hospital grounds, and the plaintiff and his tenants were excluded from the use of it. It is admitted that this was done Without the plaintiff’s permission and without action under R. L. c. 75, § 46. We assume that if a case of smallpox had broken out in the plaintiff’s house his driveway could have been roped off in regulating the disease on his premises as a menace to the public. But that is not the case we have here. What we have here is a case where a smallpox hospital was located on land hired' for the purpose, adjoining the plaintiff’s land, and in a building sixteen and one half feet distant [87]*87from one of the plaintiff’s buildings and nineteen feet from another, and where the plaintiff’s driveway and apparently other portions of his land have been appropriated to the use of the hospital to the exclusion of the plaintiff and his tenants. It appears that the defendants did this without his (the plaintiff’s) consent, and without action under R. L. c. 75, § 46.
If this was done by the defendants or by persons in their presence and under their direction, (Elder v. Bemis, 2 Met. 599,) they are liable. Hersey v. Chapin, 162 Mass. 176. We think that the jury would have been justified in finding that these acts were done by the defendants or under their direction by persons in their presence. It is to be noted that the defendants did not put in any evidence dealing specifically with this claim of the plaintiff. All that they testified to was “ that what they did in the establishment and maintenance of the hospital, they did as members of the board of health of the city of Everett.” As members of the board of health they had no right to take the plaintiff’s land without taking action under R. L. c. 75, § 46.
The second and third rulings asked for should have been given.
3. More than that, it is not true that a public officer is exempt from liability for all acts done in his official capacity. In an action brought against a highway surveyor for digging a watercourse in a highway which incommoded the plaintiff whose land abutted on the way in his access to that land, it was held that it was a defence that the watercourse was made by the defendant as a highway surveyor, and that it was not competent to introduce evidence that the digging of the watercourse was not necessary in the repair of the way. Benjamin v. Wheeler, 8 Gray, 409; S. C. 15 Gray, 486. So in an action against a surveyor by the owner of the fee in the way, for taking gravel from a bank within the way and using it to repair another public way, it was held that the surveyor’s right to exemption did not depend upon the jury’s deciding that he took the gravel from the bank for the purpose of repairing that part of the way, for that would be “substantially equivalent to trying the questions of the necessity of the repairs and the motives and good faith of the surveyor, which, as has already been decided, at a former stage of [88]*88this case, cannot be done.” Denniston v. Clark, 125 Mass. 216. On the other hand it was held in the recent case of Moynihan v. Todd, 188 Mass. 301, that a highway surveyor was liable for damage caused by his personal negligence in blasting a rock, which as a highway surveyor he had decided should be removed from the highway of which he had charge.
The distinction is the distinction laid down in Child v. Boston, 4 Allen, 41, between the exercise by a highway surveyor of the discretion put upon him by law as to what ought to be done, (acts which are quasi judicial or legislative in character,) and acts done by the surveyor in carrying into effect what in his discretion he had decided ought to be done (ministerial acts done in carrying out a plan adopted in the first capacity).
In the case at bar in fixing on the location of the hospital the defendants were exercising a discretion which the Legislature by It. L. c. 75, § 42, had required them to exercise as public officers. Manning v. Bruce, 186 Mass. 282. Frazer v. Chicago, 186 Ill. 480. Their decision on the question being quasi judicial or quasi legislative was final. It was not competent to make them liable for a mistake or for negligence in the exercise of it, that is, in the location of the hospital. Benjamin v. Wheeler, 8 Gray, 409; S. C. 15 Gray, 486. Denniston v. Clark, 125 Mass. 216. See also Dillingham v. Snow, 5 Mass. 547; Turner v. Dartmouth, 13 Allen, 291; Upham v. Marsh, 128 Mass. 546; Williams v. Adams, 3 Allen, 171. Evidence that the defendants were negligent and careless in locating the hospital was rightly excluded. The first, fourth, sixth and tenth rulings requested were properly refused.
Whether the judge was right in excluding evidence that “the defendants had maintained the hospital in a negligent and careless manner and that their carelessness in this respect made the hospital a nuisance to the plaintiff” depends upon whether this was an offer to prove that they were personally guilty of a misfeasance in the performance of a ministerial duty, like negligently setting off a blast in removing a rock from a highway, which it had been properly decided was to be removed.
If the defendants were personally guilty of a misfeasance in [89]*89such a matter and the hospital was in consequence a nuisance, the case comes within Moynihan v. Todd, 188 Mass. 301.
In connection with this offer of evidence it is to be borne in mind that there was evidence, that “ after the hospital had been in operation a couple of months, eight or nine cases of smallpox arose in six or seven houses in the immediate vicinity, including the plaintiff’s house on Everett Street, and the evidence introduced by the plaintiff tended to show that smallpox was a dangerously contagious disease, and that the smallpox cases treated at the hospital caused the cases which arose in these houses in its neighborhood.”
Where a plaintiff suffers a loss of rents from the location of a smallpox hospital in the neighborhood on land leased for the purpose but where the hospital is not improperly conducted, he has no remedy. That is a case of damnum absque injuria. See Callender v. Marsh, 1 Pick. 418, 432; Manning v. Bruce, 186 Mass. 282.
But that is not the case at bar. In the case at bar it could have been found that the hospital was a nuisance in that it had caused cases of smallpox to break out in the neighboring house of the plaintiff. Cases in which it is held that a hospital can be abated (Haag v. Commissioners of Vanderburgh County, 60 Ind. 511; Metropolitan Asylum District v. Hill, 6 App. Cas. 193 ; Baltimore v. Fairfield Improvement Co. 87 Md. 352; Bendelow v. Wortley Union, 57 L. J. (N. S.) Ch. 762) do not reach the question now before us.
We have been referred to no case, in which it has been held that a board of health although personally negligent was liable. See, however, in this connection Aaron v. Broiles, 64 Tex. 316.
If the defendants were personally negligent in the maintenance of the hospital and in consequence of that negligence the hospital became a nuisance to the plaintiff’s adjoining houses and land, the defendants would seem to be liable within the rule of Moynihan v. Todd, 188 Mass. 301, provided their negligence is a misfeasance as distinguished from a nonfeasance.
If they are guilty of a nonfeasance only, no action lies against them. The cases are collected in Moynihan v. Todd, 188 Mass. 301, 303, 304.
[90]*90It is settled in England (where the distinction between a nonfeasance and a misfeasance in case of public officers obtains) that a municipality is liable for a misfeasance if having the care of a public way it constructs in it a drain and allows that drain to fall into a defective condition for lack of repairs. Borough of Bathurst v. Macpherson, 4 App. Cas. 256. See also Municipality of Pictou v. Geldert, [1893] A. C. 524, 531; Municipal Council of Sydney v. Bourke, [1895] A. C. 433, 441. And further in this connection see Evans v. Liverpool Corporation, [1906] 1 K. B. 160.
It is worthy of being noted that the plaintiff in the Bathurst case was a traveller on the highway.
These cases, however, are not conclusive of the question in this Commonwealth. For if it be assumed that such a case is a case of misfeasance and not a case of nonfeasance, the further question arises in this Commonwealth which apparently does not arise in such cases in England and its dependencies: Whose misfeasance is it?
. Where an action is brought in England or in one of its dependencies against the municipality which is charged with the maintenance of a public way in which a drain is constructed by it, no difficulty arises. For in England since the case of Foreman v. Mayor of Canterbury, L. R. 6 Q. B. 214, the acts of the persons employed in repairing the way are the acts of the municipality. See Moynihan v. Todd, 188 Mass. 301, 304, and Cowley v. Newmarhet Local Board, [1892] A. C. 345; Municipal Council of Sydney v. Bourke, [1895] A. C. 433, 442.
For example, in England the act of constructing the drain in the highway in question in the Bathurst case was, in legal contemplation, the act of the municipality upon which the duty of caring for that way had been imposed.
That, however, is not the law in this Commonwealth, nor generally in the United States, as is pointed out in Moynihan v. Todd, 188 Mass. 301, 304. Here such a drain, if constructed by employees, is not in legal contemplation constructed by the municipality which pays the employees out of taxes collected by it, nor is it in legal contemplation constructed by [91]*91the surveyor who has charge of those employees. Those employees are the employees of the public, and it is because they'are the employees of the public that neither the town which pays them, (see for example Howard v. Worcester, 153 Mass. 426,) nor the surveyor who has charge of them, (McKenna v. Kimball, 145 Mass. 555, for example,) is liable for acts of negligence on their part. The rule of respondeat superior does not make either the town or the surveyor liable, because the employees are the employees neither of the town nor of the surveyor but of the public. Moynihan v. Todd, 188 Mass. 301, 305. See Bro. Abr. Action sur le ease, pi. 93, where it is laid down that the reason why a traveller on a highway cannot recover for damage caused to his horse by the way being out of repair is this: “ Car est populus et serra reforme per presentment.” See also Nicholson v. Detroit, 129 Mich. 246; Maxmilian v. Mayor of New York, 62 N. Y. 160, 165; Love v. Atlanta, 95 Ga. 129.
It follows that the plaintiff does not make out a case against the board of health by showing that the hospital was a nuisance and that at the time it was under their control. The plaintiff must go one step further to charge the defendants with the nuisance and prove that it was caused by acts of misfeasance on the part of the defendants or (as in Elder v. Bemis, 2 Met. 599) by an act or acts done by another in the personal presence which are thus the acts of the defendants. The plaintiff’s offer “to prove that the defendants had maintained the hospital in a negligent and careless manner, and that their carelessness in this respect made the hospital a nuisance to the plaintiff” did not go far enough to charge the defendants with liability. It did not specify an act of misfeasance on the defendants’ part which had caused the hospital to be a nuisance, by which we understand the plaintiff to mean which had caused the hospital to be the cause of the disease of smallpox that broke out in the house or houses of the plaintiff. This evidence was excluded properly, and the seventh ruling asked for was refused rightly.
4. We do not agree with the plaintiff that R. L. c. 75, § 42, applies to towns only. The word “ town ” may include a city. R. L. c. 8, § 5, cl. 23. If the plaintiff is right, in case of a [92]*92sudden epidemic breaking out in a city which has not established an isolated hospital under R. L. c. 75, § 40, all that can be done is to send such persons to a hospital in an adjoining city. We do not think that this is so. If the defendants were the board of health for Everett, the first ruling asked for was refused rightly.
5. The plaintiff’s dwelling houses were all in Everett. He is not hurt by the hospital here in question having been established within one hundred rods of inhabited dwelling houses in Malden, in violation of R. L. c. 75, § 37. The fifth ruling asked for was refused rightly.
Exceptions sustained.
See also Tozeland v. West Ham, Union, [1906] 1 K. B. 538, reported after this decision.