Marth v. City of Kingfisher

Decision Date16 November 1908
Citation98 P. 436,22 Okla. 602,1908 OK 227
CourtOklahoma Supreme Court

Syllabus by the Court.

Sections 418, 464, Wilson's Rev. & Ann. St. Okl. 1903, are merely directory, and failure of the city clerk to record upon his journal the proceedings of the city council had in passing an ordinance and to record the ordinance in the "Ordinance Book" does not invalidate such ordinance.

[Ed Note.-For other cases, see Municipal Corporations, Cent. Dig § 237; Dec. Dig. § 109. [*]]

A city of the first class has no power under the provisions of chapter 12, Wilson's Rev. & Ann. St. 1903, to engage in conducting or to conduct a Fourth of July celebration or to contract with others to conduct such celebration for it.

[Ed Note.-For other cases, see Municipal Corporations, Dec. Dig § 57. [*]]

A municipal corporation is bound by the acts of its officers only when within the charter or scope of their powers. Acts outside of the powers of the corporation or of the officers appointed for it are void as respects the corporation, and such corporation is not liable therefor.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 375; Dec. Dig. § 167. [*]]

A municipal corporation is not liable for failure to exercise a governmental power, as for failure to enact an ordinance against horse racing upon its streets, nor for failure to enforce such ordinance after it is enacted.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1551; Dec. Dig. § 735. [*]]

A horse race upon a street of a city is not a defect or want of repair in the highway of the city or a dangerous condition of such highway for which a city is liable to a traveler upon such street who is struck by one of the horses in the race.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 766. [*]

For other definitions, see Words and Phrases, vol. 2, pp. 1827, 1932, 1933.]

The racing of five or six wild and unbroken horses upon the street of a city where a large crowd is gathered is a dangerous and illegal use of such street, for which a commercial club and its officers and agents at whose instance and under whose supervision such race is conducted are liable to a traveler upon such street who, without fault on his part, is struck and injured by one of the horses in the race.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 705; [*] Highways, Cent. Dig. § 466.]

A misjoinder of parties is no ground for demurrer under our Code.

[Ed. Note.-For other cases, see Parties, Cent. Dig. § 115; Dec. Dig. § 75. [*] ]

Error from District Court, Kingfisher County; C. F. Irwin, Judge.

Action by Franz F. Marth against the City of Kingfisher and others. Judgment for defendants, and plaintiff brings error. Affirmed as to the City of Kingfisher, and reversed and remanded as to the other defendants.

This is an action for damages for personal injuries, brought originally in the district court of Kingfisher county by plaintiff in error, plaintiff in that court, against the city of Kingfisher, a municipal corporation, the Commercial Club of Kingfisher, a corporation, and David Weinberger, A. E. Bracken, Elmer Solomon, Harley Davis, and George H. Laing. The facts alleged in plaintiff's amended petition are that the city of Kingfisher is a city of the first class, and that the Kingfisher Commercial Club is a private corporation under the laws of the territory of Oklahoma, and that defendants Weinberger, Bracken, Solomon, Davis, and Laing were the duly authorized agents and representatives of said city and commercial club at the times and in the transactions complained of in plaintiff's petition. Plaintiff alleges that the principal object and purpose of said Commercial Club was to build up and encourage trade and commerce from the territory tributary to the city of Kingfisher; that shortly prior to the 4th day of July, 1905, the city of Kingfisher and said Commercial Club, through their representatives, officers, and agents, duly elected and appointed, determined to conduct and carry out a celebration on the national holiday on the 4th day of July, 1905; that the principal purpose of said celebration as determined upon by said defendants was to build up trade and commerce, and that the same was to be entered upon as a private undertaking and conducted for the benefit of said city; that some weeks prior to the 4th day of July, 1905, said city, through its duly elected and appointed officers and agents, duly convened according to law and said Commercial Club, through its officers and agents duly appointed and commissioned for that purpose, agreed with each other to aid said celebration for such purposes, and appointed the persons named as defendants together with other persons unknown to plaintiff as the duly authorized agents and representatives of said city and Commercial Club to arrange and carry out the proposed celebration; that the city of Kingfisher thereupon, through its mayor and city council, passed all necessary ordinances, rules, and by-laws and regulations at a regular meeting of the council necessary and proper for carrying out said celebration, and showing the purpose for which the celebration was to be entered upon and conducted, but that for some reason unknown to plaintiff the city and its officers neglected and failed to enter in writing the proceedings had in reference to said matter by its city and mayor, and that such proceedings have at no time since been made a matter of record, for which reason plaintiff is unable to set out in detail such rules, by-laws, and regulations pertaining to the celebration; and further alleges that, in pursuance with the agreement between the city and the Commercial Club, people by means of advertisement were invited to attend said celebration in the city of Kingfisher on said day; that the principal business thoroughfare of said city is commonly known as Main street; that on the day of the celebration defendants, acting through their officers and agents, inclosed a portion of said street by stretching ropes across the same and across the streets and avenues that intersected the same, and that such arrangement of said street was made for the express object and purpose of conducting within the inclosure on said street a horse race; that the mayor and council of the city were present and saw all the preparations made, and knew the purpose and object of the ropes across said street and intersecting streets but failed to prevent same; that during the celebration on said day the defendant city and Commercial Club, through their committees, officers and agents, placed wild and half broken horses, five or six in number, upon the inclosed portion of said street in charge of small boys who were unable to control the horses, and that in the meantime one of the ropes stretched across one of the intersecting streets had been torn down; and that plaintiff, coming over said intersecting street upon Main street, in company with his wife and children, in a two-horse carriage just at the time said horses were being run down the street, his carriage was struck by one of said horses and overturned, and he and his family thrown from the same upon the ground, by which fall plaintiff was bruised and injured in his back, knees, and head; that he had no knowledge that such horse race was in progress or that the same was contemplated, and that he was without fault or negligence on his part. On account of these injuries he asks judgment of the court for damages. To this amended petition all the defendants filed their separate demurrers, and the court sustained the same and rendered judgment dismissing the cause. The action of the court in sustaining the demurrers of defendants and rendering judgment dismissing the cause is the error assigned by plaintiff for reversal of this case.

Noffsinger & Hinch, for plaintiff in error.

John T. Bradley, Jr., for defendant in error City of Kingfisher.

F. L. Boynton, for defendants in error Commercial Club, Bracken, Davis, and Laing.


The propositions presented by this appeal may be best disposed of by considering separately the merits of the demurrers of the defendants. Counsel for the defendant city of Kingfisher contends that its demurrer should have been sustained by the court for the reason that it is disclosed by the petition that the ordinances and transactions of the city council by which it was agreed that such celebration should be held were never made matters of record as is required by law, and therefore such proceedings of the officers of the city of Kingfisher were void and the city was not liable for any acts of its officers or other persons acting thereunder; second, that defendant as a municipal corporation of Oklahoma Territory was not authorized by law to contract for a Fourth of July celebration and to conduct a horse race for the purpose of entertaining the public; third, that a municipal corporation is liable only for the manner in which it discharges its ministerial duties, and that the manner of regulating and controlling the use of the streets was within the legislative, judicial, and discretionary powers of such corporation and not part of its ministerial duties, and that for the negligent exercise thereof in prohibiting or for failing to prohibit horse racing upon its streets it was not liable.

Section 418, Wilson's Rev. & Ann. St. Okl. 1903, provides "that the city clerks of the cities of the first class shall keep a journal in which shall be recorded all proceedings of the city council." And section 464 of the same statute provides that "the city clerk shall keep an 'Ordinance Book,' in which he shall enter at length in a plain and distinct handwriting, every...

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