*448The opinion of the court was delivered by
Peck, J.The statute requires that “ all highways and bridges within the bounds of-any town, shall be kept in good and sufficient repair, at the expense of such town, at all seasons of tho year.” For this purpose, in addition to the twenty-five per cent, which the statute requires the selectmen to assess upon the grand list of the town, provision is made by statute for the raising of money by the town by vote at their annual March meeting, or at any special meeting warned for that purpose, to the extent that shall be necessary for the performance of this duty by the town. To enforce this duty, and to indemnify the public against the consequences of a neglect of its performance, it is provided that if any special damage shall happen to any person, his team, carriage, or other property, by means of the insufficiency or want of repairs of any highway or bridge in any town, which such town is liable to keep in repair, he shall have an action to recover the same against the town. Huch is the duty and liability of the town to the public. As to the agencies or instrumentalities through which this duty is to be performed, in addition to the provision for the election of highway surveyors by the town, and for the division of the town by the selectmen into highway districts convenient for repairing highways, and .for tho making out and delivery of a tax-bill to each surveyor, containing the amount of tax set or assigned to his district, it is provided that “ it shall be the duty of each surveyor of highways to superintend the expenditure of tho tax, and to take charge of, and keep in repair at all times, the highways in Ms district; and he shall be responsible to the town for any damages which may be sustained by the town through his fault or neglect in the discharge of his duty.” The claim on the part of the defense is, that this provision as to the duty and liability of the highway surveyor, does not require him to do more than faithfully to expend the amount of taxes in his tax-bill, in the repair of the highways, or authorize him to do morq at the expense of the town, at least without the direction of the selectmen. But this language of the statute, imposing the duty upon the highway surveyor “ to superintend *449the expenditure of the tax, and to take charge of, and keep in repair at all times, the highways in his district,” is too explicit, comprehensive, and unqualified, to limit his duty by the amount of the tax-bill put into his hands, or to make the performance of it dependent on the will of the selectmen. Whatever duty rested upon the selectmen in the matter, if any, was not in diminution of the duty of the plaintiff, but in aid of its performance. The plaintiff, in the expenditure of the money and performance of the labor for which he claims to recover, did no more than his official duty required, and had he done less, he would have been guilty of official neglect. As highways are to be “ kept in good and sufficient repair at the expense of such town at all seasons of the year,” and as the plaintiff, as the proper officer of the town for that purpose, has necessarily, without means furnished him by the town, performed so much of that duty as the statute required of him, he has done it on the credit of the town, and is entitled to recover for it in this action. It is difficult to perceive how the statute can bear any other construction. It is insisted on the part of the defense, that the power of the highway surveyor to expend more than the tax-bill put into his hands, is limited to the extraordinary occasions of sudden injury to a bridge or highway, mentioned in ch. 25, § 18. But it is obvious that section-was not intended as a limitation or restriction of the duty and power in question to such extraordinary occasion when a bridge or highway should be suddenly destroyed or impaired, but only to speed the reparation of the bridge or highway in such case; as is evident from the fact that it imposes a penalty in such case of sudden injury, on the highway surveyor for neglect to proceed within twelve hours after application to him ; and on the inhabitants of the district in the tax-bill, for neglect to turn out and assist on six hours notice from the highway surveyor, whether any tax is due from them or not. The act of 1797 (Slade’s Comp. Stat. 427, compiled in 1824) contains substantially the same provisions as to the duties, powers, and liabiltiies of highway surveyors, as the present statute, except the words, “ and to take charge of, and keep in repair at all times, the highways in his district.” This provision first appears in any compilation or col*450lation of the statutes, in the Rev. Stat. of 1839. I have not examined the pamphlet laws to see whether it was enacted in the meantime; but whenever it was enacted, it was obviously inserted as a clear and explicit imposition of duty upon highway surveyors to keep the highways in their respective districts in repair, irrespective of the amount of taxes put into their hands for that purpose.
It is insisted that if the town is liable, the plaintiff is limited to the rate of compensation fixed by the statute. But the provision of the act of 1864, fixing the wages of a man at fifteen cents per hour, and the price for teams, carriages, and tools employed in making rapairs, at such price as the town at their annual meeting, or the selectmen, shall establish, applies only to • each person who shall furnish work on the highway, or teams, carriages, or tools, “ in payment of his highway tax assessed by the selectmen.” It is not stated that any such question was raised in the county court, nor that the plaintiff’s charges exceed the statute rate. Nor can it be with reasonable certainty in- ■ ferred from the items of the account as charged. But assuming this sufficiently appears, the statute does not apply to the claim.
Judgment affirmed.