SHADE TREE LAW IN MASSACHUSETTS 9 



ten per cent of the registered voters filed with the selectmen thirty days or more 

 before an annual town meeting asking that he be so appointed."'* 



A town may, after a vote authorizing the selectmen to appoint a tree warden 

 has been in effect for a period of not less than three years, by a vote at a meeting 

 held at least thirty days before the annual town meeting, rescind such action, 

 and thereupon the town shall at the next town meeting nominate and elect a 

 tree warden.-^ 



There is no general law requiring the election or appointment of tree wardens 

 in cities. By section 13 of chapter 87, of the General Laws (Ter. Ed.), the powers 

 and duties conferred and imposed upon tree wardens in towns by that chapter 

 "shall be exercised and performed in cities by the officers charged with the care 

 of shade trees within the limits of the highways." These officers may be "charged 

 with the care of shade trees" by city charters or ordinances of the city. 



The tree warden derives all of his powers from the Legislature, and is a public 

 officer. His "functions constitute not private acts, but public servnce."^" A 

 public officer "is one whose duties are in their nature public, that is, involving 

 in their performance the exercise of some portion of the sovereign power, whether 

 great or small, and in whose proper performance all citizens, . . . are interested, 

 either as members of the entire bodv politic, or of some dulv established division 

 of it. "31 



The care, control and maintenance of public shade trees is an act of sover- 

 eignty.32 In Whiting v. Board of Public Works of Holyoke, 222 Mass. 22, 26 

 (1915) the court speaking through Mr. Justice Braley said: 



The legislation concerning public shade trees has been enacted from 

 time to time not merely to satisfy the desire of cities and towns for the 

 conservation in their thoroughfares of shade and ornamental trees, in 

 many instances a legacy from the past or the gift of public spirited citizens, 

 but for the benefit and enjoyment of all the inhabitants of the Common- 

 wealth having occasion to use the public ways. 



The powers and duties of the tree warden may not be abridged or enlarged 

 or controlled by any act or vote of the town. Only the Legislature may do this. 



The town is not liable for any negligent act of the tree warden. "This principle 

 of exoneration is not one of narrow or technical reasoning, but rests upon the broad 

 foundation widely accepted in most jurisdictions, that an agency of government, 

 while engaged upon duties imposed solely for the benefit of the public, is not 

 liable for the negligent performance of such duty."*^ Although appointed and 

 paid for by the town, the person performing the duties imposed under a legisla- 

 tive mandate is not a private agent or servant, but a public officer. ^^ 



The tree warden is not relieved of personal liability if he commits a tort whether 

 by negligence or otherwise in the performance of his duties. 



The tree warden has the care and control of all public shade trees, shrubs and 

 growth in the town, except those within a state highway, and those in public 

 parks or open places under the jurisdiction of the park commissioners. He may 



28G. L. (Ter. Ed.), c. 41, § 21. 



"G. L. (Ter. Ed.), c. 41, § 23. 



'"Donohue v. Newburyport, 211 Mass. 561. 



".A.tLOrney General v. Drohan, 169 Mass. 534, 535. 



'-Donohue v. Newburyport, 211 Mass. 561. McCarthy v. Boston, 135 Mass. 197. 



"Donohue v. Newburyport, 211 Mass. 561. 



'^Donohue v. Newburyport, 211 Mass. 561. 



