
    John R. Studley vs. Robert Geyer and another.
    Knox.
    Opinion June 2, 1881.
    
      Gruida posts. It, S'., c. 18, § 78. Liability of municipal officers.
    
    The municipal officers of a town are not liable in an action under R. S., c. 18, § 78, for unreasonably neglecting to cause a guide postto be erected, when it appears that the town has not raised any money for that purpose.
    ON EXCEPTIONS.
    Case against the selectmen of the town of Friendship for unreasonably neglecting to erect guide posts.
    Plea, general issue, with brief statement that the town never raised any money for the purpose and never passed any vote to erect guide boards.
    At the trial the court instructed the jury to- return a verdict for the defendants and plaintiff alleged exceptions.
    The facts appear in the opinion.
    The town records disclosed the following vote :
    "Voted to raise two hundred and fifty dollars for town charges.”
    
      C. JE. Littlefield, for the plaintiff.
    By sections 77 and 78, c. 18, R. S., it was clearly the intention of the legislature to give two concurrent remedies in case of a neglect to erect guide posts. One against the town and one against the municipal officers. In construing statutes regard must be had to the mischief intended to be remedied. Winslow v. Kimball, 25 Maine, 493.
    True, no money was raised specifically for the purpose of erecting guide posts, but the selectmen were not without funds, which could be used for that purpose, for two hundred and fifty dollars were raised as a contingent fund.
    
      A . I\ Gould, for the defendants,
    cited: Harlow y. Young, 37 Maine, 88 ; Gomins v. Eddington, 64 Maine, 65.
   AupletoN, C. J.

This is an action of the case against the selectmen of the town of Friendship for neglecting to erect guide posts as provided by law.

By R. S., c. 18, § 77, towns are required to "erect and maintain guide posts at all crossings of highways, and where one highway enters another,” . . and "for any neglect herein, towns shall be subject to indictment and fine not exceeding fifty dollars.”

The town has never voted to erect guide posts or to raise money for that purpose, nor has it instructed its selectmen to erect them.

By § 78, "if the municipal officers of any town unreasonably neglect to cause a guide post to be erected in their town as provided by law, they shall forfeit and pay five dollars for each month’s neglect,” &c.

The duty to erect and maintain guide posts devolves primarily on the town. The liability of its officers arises only upon and after their own neglect. But the municipal officers of a town are not reqtdred to furnish funds for the performance of any duty imposed on the town.

If they did, it would seem they could not recover these advances of the town. Comins v. Eddington, 64 Maine, 65. The town must raise the needed funds. It has not been done, and the defendants have been guilty of no neglect whatever.

Exceptions overruled.

WaltoN, Barrows, DaNjfoeth, Peters and Libbey, JJ., concurred.  