openings, see Bacon v. Boston, 3 Cush., 174, 180, and Harriman v. Boston, 114 Mass. 241.

SECT. 17. As to city's liability for damages caused by falling into a coal-hole, see Hanscom v. Boston, not yet reported.

SECT. 19. The construction of bow-windows and other projections from buildings into streets is now controlled mainly by St. 1885, c. 374, § 27. St. 1882 c. 252, § 3 is repealed by St. 1885, c. 374, § 147. The earlier provisions of St. 1799, c. 31, § 5, are apparently now obsolete. A general statute provision relative to this subject is to be found in P. S. c. 28, § 24.

An ordinance similar to this section was held to be valid in Commonwealth v. Goodnow, 117 Mass. 114. But as to its validity under P. S. c. 28, § 24, so far as concerns porticos, porches, or steps, see Cushing v. Boston, 128 Mass. 330; also S. c. 122 Mass. 172, and 124 Mass. 434. Violation of an ordinance like this section does not confer a right of action upon an individual. Jenks v. Williams, 115 Mass. 217.

SECT. 20. Ordinances similar to this section have been held to be valid in Pedrick v. Bailey, 12 Gray, 161, and in Heald v. Lang, 98 Mass. 581. As to the city's liability for injuries caused by the fall of awnings, see Drake v. Lowell, 13 Met. 292; Ďay v. Milford 5 All. 98.

SECT. 22. As to the liability of the city for injuries caused by the fall of overhanging signs, etc., see Jones v. Boston, 104 Mass. 75; West v. Lynn, 110 Mass. 514, 518.

SECT. 24. See also, on the subject of this section, St. 1816, c. 90, § 4. SECTS. 25-32, inclusive, authorized by P. S. c. 27, § 47, and c. 28, § 4, See also, P. S. c. 109, §§ 3, 4, 5, as to powers of board of aldermen. Appropriating highway for use of telegraph above ground is not an additional servitude for which compensation can be recovered by the owner of the fee. Pierce v. Drew, 136 Mass. 75. Whether same is true of underground wires, quære.

SECT. 33. See also, on the subject of this section, P. S. c. 53, § 17, Rev. Reg. of Aldermen, c. 5, and Day v. Green, 4 Cush. 433, 437.

If a building is moved through the streets without a permit, it seems that such building may be treated as a public nuisance. See Pike v. Brimmer, 9 Law Reporter, 221.

SECT. 34. A statute provision somewhat similar to this section is to be found in St. 1799, c. 31, § 6.

SECT. 37. Ordinances against fast-driving are specially authorized by P. S. c. 53, § 13. See also P. S. c. 28, § 25; P. S. c. 53, § 15. See Commonwealth v. Worcester, 3 Pick. 462. An ordinance prohibiting driving at an "immoderate" gait is not valid; an ordinance in order to be valid under P. S. c. 53, § 13, must definitely determine the rate of speed which shall be illegal, and not leave it open to an inquiry into the circumstances of each case. Commonwealth v. Roy, 140 Mass. 432, 433. Negligently running over another, while driving in violation of this ordinance, does not constitute a criminal assault and battery. Commonwealth v. Adams, 114 Mass. 323. In a civil action, violation of this ordinance is prima facie evidence on the issue of negligence, but is not conclusive. Hall v. Ripley, 119 Mass. 135; Hanlon v. South Boston Horse Railroad Co., 129 Mass. 310. In an action for injuries occasioned by a defective highway, the burden of proof is on the plaintiff, upon the issue of due care, to show that he was not violating this ordinance. Tuttle v. Lawrence, 119 Mass. 276. See also Heland v. Lowell, 3 All. 407. See also Damon v. Scituate, 119 Mass. 66.

SECT. 38. This ordinance is specially authorized by St. 1880, c. 134. SECT. 39. This ordinance is specially authorized by P. S. c. 53, § 11. SECT. 40. Cities are authorized by statute to make ordinances, with penalties not exceeding twenty dollars, to prevent the pasturing of cattle in the streets. P. S. c. 53, § 10. See Commonwealth v. Curtis, 9 All. 266. "We should not deem a by-law unreasonable which should in terms wholly prohibit the driving of a herd of swine through the streets of a compact city." Metcalf, J., in Commonwealth v. Curtis, 9 All. 266,

271.

SECT. 43. It is provided by statute that the mayor and aldermen may make regulations concerning blowing horns, beating drums, etc., in the streets. P. S. c. 53, § 16.

SECT. 44. As to what constitutes "standing in a street" within the meaning of this section, see Commonwealth v. Elliot, 121 Mass. 467. SECT. 48. It is provided by statute that the mayor and board of aldermen may make regulations concerning coasting in the streets. P.S. c. 53, §§ 15, 16.

The city is not liable for injuries caused by boys coasting in the streets in violation of this ordinance. Pierce v. New Bedford, 129 Mass. 534. SECT. 49. Persons violating this ordinance may be arrested without a warrant, etc. P. S. c. 207, § 35.

SECT 54. The statute provisions relative to the making of sidewalks and assessing the expense upon abutters are to be fouud in St. 1799, c. 31, §§ 1, 2. St. 1833, c. 128. P. S. c. 50, §§ 20-25. (Of the statutes referred to in these sections of the Public Statutes, St. 1872, c. 302, was accepted by the city council May 4, 1872, but the other statutes referred to have not been so accepted.) P. S. c. 53, § 6. (Construction of sidewalks by individuals.)

SECT. 61. Persons violating this ordinance may be arrested without a warrant, etc. P. S. c. 207, § 35.

SECT. 62. Ordinances regarding the removal of snow and ice from sidewalks are authorized by P. S. c. 53, § 7.

The constitutionality of such ordinances was considered and upheld in Goddard, Petitioner, 16 Pick. 504, 508.

Such ordinances do not have the effect of making parties who fail to comply with them liable for injuries arising from the condition of the snow or ice on their sidewalks. Kirby v. Boylston Market Association, 14 Gray, 249, 252. Nor do they excuse the city from its duty to clear the sidewalks, nor exempt it from liabilty for defects therein. Hayes v. Cambridge, 138 Mass. 461.

The words "having the care of the whole of such building or lot" were probably inserted in the ordinance by reason of the decision in Commonwealth v. Watson, 97 Mass. 562.

SECT. 65. The board of aldermen were made surveyors of highways by section 41 of the city charter. St. 1885, c. 266, § 6 takes from them so much of their power as surveyors of highways as is executive in its character and transfers it to the mayor. (See post. c. 29, § 1, note.) There remains to them such of their powers in that capacity as are quasi judicial or ministerial. (See St. 1799, c. 31; St. 1831, c. 1.) By St. 1877, c. 228, § 1, the city council is authorized, upon acceptance of the act (§ 4), to confer upon the board of street commissioners any powers now vested in the board of aldermen as surveyors of highways. The act has not yet been accepted by the city council.

By St. 1877, c. 228, § 1, the city council is authorized, upon acceptance of the act (§ 4), to confer upon the board of street commissioners any powers now vested in the board of aldermen as surveyors of highways. The act has not yet been accepted by the city council.

and general powers and du

SECTION 1. There shall be annually appointed by the Appointment, mayor, subject to confirmation by the board of aldermen, a superintendent of streets, who shall keep the public ways of ties. the city in proper condition for travel, and make the necessary R. O. p. 74. repairs thereon, subject, however, to the provisions of chapter eighteen of these ordinances. He shall also have charge of the construction of new streets, and the reconstruction or widening of established streets, as also of all sidewalks, gutters, plank-walks, fences, and other appurtenances to the roadway, and the locating of catch-basins in the public streets. But in no case shall he exceed the appropriation for any specific work or class of work, nor, until empowered to do so by vote of the board of aldermen, proceed to construct any public way.

SECT. 2. There shall be allowed to the superintendent Subordinates. for the discharge of his duties the following subordinates:

One deputy superintendent,

One accountant and book-keeper,

Three office clerks,

One foreman for each district, not exceeding ten in
all,

Twenty-six sub-foremen.

R. O. p. 75.

further duties.

SECT. 3. The said superintendent shall attend at his office Superintendent, during a portion of each day; shall keep a record of all his proceedings, and a set of books, in which shall be entered under appropriate heads the receipts and expenditures in his department, with the names of all persons who have furnished materials and of all workmen who have been employed, and of the amount paid to each; and shall make to the city council a quarterly report of the facts so recorded and entered, except the names of the laborers. Such reports shall specify the R. O. pp. 74, 75. work done on each street or locality separately, and shall contain abstracts of all contracts for supplies of materials

quarterly and annual reports.

pay-rolls of

made by, etc.

made since the previous report. He shall also make annually, on or before the tenth day of January, a report to the city council, containing a general statement of the expenses of his department during the preceding year, and of the amount expended on the various streets, an estimate in detail of the property in his charge belonging to the city, and such other information as he may consider desirable.

SECT. 4. The pay-rolls of all laborers employed under the laborers to be direction of the said superintendent shall be made up and certified by him in accordance with section five of chapter fourteen of these ordinances.

R. O. p. 75.

Defects in

streets, notices

and repairs of. R. O. p. 75.

Superintendent to notify other

tion of streets.

SECT. 5. All notices of defects in public streets, which are received by any officer or person in the employ of the city, shall be sent to the office of the superintendent of streets, who shall make a record of the same, with the name of the person making the report, and the time when the report was made, in a book kept for the purpose; and he, or some competent person detailed by him, shall, without delay, examine the locality of the alleged defect, and if upon examination it appears that the defect is of such a character as to endanger the safety of public travel, and that the city is liable for its repair, he shall cause it to be immediately repaired; and, until such repair is completed, he shall do whatever may be necessary to protect the public from injury by reason of the defect.

SECT. 6. Whenever the superintendent of streets is about departments of to construct a new street, or to break up the surface of any proposed open- public way, he shall, at least two weeks before beginning ing or construc- work, notify the superintendent of sewers, the superintendent of lamps, and the water board. If either of these departments has any work to be done in the street or way so designated, it shall consult and arrange with the said superintendent of streets, in order that such work may be done before the surface of such street or way is again prepared for and opened to public travel. After such notice and opportunity have been given, neither of the said three departments of sewers, lamps, or water shall, for the space of six months, break up said street or way within the area of such previous disturbance, except in case of obvious necessity, to be certified to and approved by the mayor.

NOTES.

The office of superintendent of streets is created by ordinance under § 38, of the charter, and is not mentioned in any statute. The manner of his appointment and removal, and of the appointment and removal of his subordinates, is determined by St. 1885, c. 266, §§ 1, 5. The duties of his office as set forth in the ordinance are, in general, the executive duties of surveyors of highways (See Barney v. Lowell, 98 Mass. 570, 571-2), which, by St. 1885, c. 266, § 6, are vested in the mayor to be exercised through the appropriate officer. As to

whether any part of those duties has been assigned to the superintendent of common, in reference to trees in the highway, see McCarthy v. Boston, 135 Mass. 197, and note on c. 42, § 2, post.

The city is not liable in damages for the negligence of a laborer employed by an officer having the power of a surveyor of highways. Walcott v. Swampscott, 1 All. 101; Barney v. Lowell, 98 Mass. 570; nor generally for the acts of the superintendent of streets. Manners v. Haverhill, 135 Mass. 165, 171. As to the personal liability of a surveyor of highways for his official acts, see Johnson v. Dunn, 134 Mass. 522.

For a full summary of the cases on the subject of the city's liability in tort for the acts of its officers, see Hill v. Boston, 122 Mass. 344, and Tindley v. Salem, 137 Mass. 171.

SECT. 2. See St. 1885, c. 266, § 5.

SECT. 5. As to what constitutes a valid notice under P. S. c. 52, §§ 19, 21, of injuries received by reason of a defect in a highway see the following cases in which the notice given was held invalid: Larkin v. Boston, 128 Mass. 521; Kenady v. Lawrence, 128 Mass. 318; McNulty v. Cambridge, 130 Mass. 275; Miles v. Lynn, Id. 398; Mooney v. Salem, Id. 402; Donnelly v. Fall River, Id. 115; Noonan v. Lawrence, Id. 161; Shea v. Lowell, 132 Mass. 187; Cronin v. Boston, 135 Mass. 110; Shallow v. Salem, 136 Mass. 136; Dalton v. Salem, 139 Mass. 91; Spooner v. Freetown, 139 Mass. 235; Roberts v. Douglas, 140 Mass. 129, and the following, in which it was held valid: Harris v. Newbury, 128 Mass. 321; Taylor v. Woburn, 130 Mass. 494; Donnelly v. Fall River, 132 Mass. 299; Savory v. Haverhill, Id. 324; Welch v. Gardner, 133 Mass. 529; Lowe v. Clinton, Id. 526; Aston v. Newton, 134 Mass. 507; McCabe v. Cambridge, Id. 484; Dalton v. Salem, 136 Mass. 278; Lyman v. Hampshire, 138 Mass. 74; Sargent v. Lynn, 138 Mass. 599; Grogan v. Worcester, 140 Mass. 227; Davis v. Charlton, Id. 422.

The notice is a condition precedent to the right to maintain an action against the city, and cannot be waived by the city. Gay v. Cambridge, 128 Mass. 387; Madden v. Springfield, 131 Mass. 441.

For variance between notice and proof, see McDougall v. Boston, 134 Mass. 149.