City of Denver v. Spencer

• Decision Date: 02 October 1905
• Citation: 34 Colo. 270,82 P. 590
• Parties: CITY OF DENVER v. SPENCER.
• Court: Colorado Supreme Court

82 P. 590

34 Colo. 270

CITY OF DENVER v. SPENCER.

Supreme Court of Colorado

October 2, 1905

Appeal from District Court, Arapahoe County; F. T. Johnson, Judge.

Action by Ethel Spencer against the city of Denver. From a judgment for plaintiff, defendant appeals. Reversed.

Action for damages for personal injury, which plaintiff sustained by the falling of a stand alleged to have been negligently erected by defendant. The material issue of negligence being traversed, trial to a jury resulted in judgment for the plaintiff. Defendant appeals. At the time of the accident the defendant city existed under a special charter granted by the General Assembly. Article 3 thereof created a park commission, composed of three commissioners, to be appointed by the mayor. Section 81 of the article says: 'The secretary shall keep a record of all the proceedings of the commission.' Section 84 reads: 'A majority of the members shall constitute a quorum, and no action of the commission shall be binding unless authorized by a majority of the members at a regular or duly called special meeting thereof.' Other sections confer upon the park board exclusive management and control of all the parks belonging to the city, and, with the approval of the mayor, exclusive power to expend in behalf of the city, upon the parks, all sums of money that are raised by taxation or otherwise for park purposes. The complaint alleges that the park commission had control of City Park, one of the parks belonging to the city, and that the same was used as a place of resort and entertainment for its citizens; that the commission had sold privileges to private individuals to sell and serve refreshments in the park, and that, for the purpose of inducing and bringing into the same large numbers of people and thereby enhancing the value of the privileges, and indirectly contributing to the city revenues, the commission determined to, and did, erect therein a stand or structure for the seating of a large number of people, and this stand was erected and intended to be occupied by children and others of immature age, who were solicited and induced to go upon the same for the purpose of singing and giving a musical entertainment; that the plaintiff, among others, was so induced and invited by the park commission to go upon the stand, and while thereupon it suddenly fell and caused the injury here sued for. The negligence pleaded is improper construction, erection, and bracing of the stand.

H. M. Orahood, Halsted L. Retter, and N. B Bachtell, for appellant.

John H Leiper and Rufus M. Snavely, for appellee.

CAMPBELL J. (after stating the facts).

1. The city says that, although the park commission has the control and management of its public parks, yet, as they were appointed under the authority of the General Assembly, they are not strictly municipal, but public, or state, officers and therefore the city is not liable for their negligent acts within the scope of their authority. This position is not tenable, and the very authorities cited in its support are against it. The special charter was granted to the city by the General Assembly, but the duties imposed upon the park commission are exclusively for its benefit, and in no sense for the state or any of its political subdivisions. The parks are the private and exclusive property of the city in which the state, as distinguished from the municipality, has no property interest whatever. To this proposition no authorities need be cited.

2. The stand or structure was erected in the City Park by, and under the direction of, the park commission, so plaintiff says; without any legal authority emanating from the board, as the city asserts. The evidence is that the secretary of the park commission, if that board took any action with reference to erecting the stand, made no record of it. The city's construction of the charter, and its contention with respect to this point, is that the city can be bound by the action of the park commission only at a regular or special meeting, and that the only evidence of its action thereat is the record which is required to be kept, and, when the records are silent, none of its proceedings in a collateral action can be shown by parol proof. To this proposition probably the strongest case cited is Morrison v. City of Lawrence, 98 Mass. 219. There the court said that parol evidence was inadmissible to prove the acts or proceedings of the city council, or that the record of such proceedings, as kept by the clerk, was erroneous or defective. This conclusion, as we understand the opinion, was based upon the proposition that the acts sought to be established by parol proof were lawful only because authority therefor was conferred by statute, and, as this authority was strictly limited and the method prescribed exclusive, no obligation could be incurred by, or liability imposed upon, the city, except in pursuance of a vote of two-thirds of the members of each branch of the city council present and voting by yea and nay vote; and, as there was an express provision of the same act requiring the city council to keep a record of the whole proceedings, the only evidence of municipal action was the record. Other cases cited to the same proposition are: School District v. Atherton, 53 Mass. 105; Boston Turnpike Co. v. Pomfret, 20 Conn. 590; Gilbert v. New Haven, 40 Conn. 102; City of Lowell v. Wheelock, 11 Cush. (Mass.) 391; City of Louisville v. McKegney, 7 Bush (Ky.) 651.

Some of these cases, under the local statutes tend to support the city's contention. Others might be distinguished. No provision of the Denver charter to which our attention is called, either expressly or by implication, declares that nothing but a recorded vote or written document shall bind the city or be received as evidence. There is a direction that the secretary of the commission shall keep a record of all of its proceedings; but there is no provision that its acts shall be void unless such record is kept, or that the record thereof is the sole and exclusive evidence. Judge Dillon, in the first volume of the fourth edition of his valuable work on Municipal Corporations, at section 300, refers to the distinction sometimes drawn between evidence to contradict facts stated on the record and evidence to show facts omitted to be stated. He says that parol evidence of the latter kind is receivable, unless the law expressly and imperatively requires all matters to appear of record, and makes the record the only evidence. The leading case in support of this view is Bank v. Dandridge, 12 Wheat. 64, 6 L.Ed. 552, where, in an elaborate opinion by Mr. Justice Story, the doctrine of the text is laid down. The same principle by the same court was extended to public boards in the case of U.S. v....