Long v. Sargent

101 Mass. 117

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1869
• Status: Published

Opinion

Wells, J.

The power of selectmen to establish a fire department under the Gen. Sts. c. 24, §§ 23-31, is not derived from the town, and they cannot be deprived of it by vote of the town. It is not dependent upon the contingency of a failure on the part of the town to elect ¿rewards.

In the absence of a fire department, it devolves upon the selectmen to appoint enginemen ; to direct in the formation of engine, hose and other companies; to prescribe their duties; to approve the rules and regulations that such companies may adopt in their organization; and to discharge those wfio are negligent in their dtities. When a fire breaks out, the ¿rewards take the direction of all operations, provided there are ¿reward? present; otherwise, certain other officers are designated to exercise that authority. But firewards do not constitute a board; they have no organization; their number is indefinite; they have no ordinary duties by virtue of their office. Their duties and their authority are limited to the occasion which requires their exercise. They cannot organize engine companies, nor appoint enginemen. If the selectmen appoint enginemen, and organize companies under §§ 9-11, such companies are required to act under the direction of the firewards. But the selectmen may or may not do this, as they see fit. If they determine, instead of this, to establish a fire department, they have the power, under the statute, to do so. In that case the selectmen merely appoint engineers; and then, upon the organization of the engineers as a board, all their own powers and duties in that regard are transferred to the engineer® of the fire department, who are also clothed by the statute with the powers of fire-wards. Their powers and duties are also defined in several other important particulars, which indicate that full and exclusive control was intended to be given to them, not only in the organization of the department and the management of the engines and other property, but also in all their operations in respect to fires.

The establishment of a fire department does not vacate the office of the firewards. They still remain officers of the town, with all the authority and the duties that belong to the office, to be exercised if there should be occasion. But the fire department must be under the control of its own officers, and when they are present, the firewards have no occasion to act.

As the engineers act as firewards, the selectmen may properly deliver to them the appropriate badges of their office. We suppose the suit to have been brought, not for the purpose of obtaining the badges, but to test the right of the selectmen to establish the fire department, after the town had acted upon the subject by electing firewards.

In accordance with the foregoing views, the mandamus must be refused and the Petition dismissed.