Morrison v. City of Lawrence

98 Mass. 219

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1867
• Status: Published

Opinion

Bigelow, C. J.

A city or town cannot be held liable in damages for the act of a person, unless it appears that the injury was inflicted by a servant or agent of the city or town while engaged in the legitimate exercise of the service or business for which he was employed. Unless this is shown the maxim respondeat superior does not apply. Walcott v. Swampscott, 1 Allen, 101.

The only authority conferred on a city by which it can legally appropriate money to celebrate a holiday is found in St. 1861, c. 165. Before the enactment of that statute any appropriation of money for such purpose was illegal. Hood v. Mayor & Aldermen of Lynn, 1 Allen, 103. The authority given by the statute is a strictly limited one. It can be exercised only 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.” There was no competent evidence at the trial of this case that the city of Lawrence had duly exercised any authority under this statute for the celebration of the Fourth of July, when the plaintiff was injured ; or that any one was duly empowered to purchase fireworks in behalf of the city to be used in such celebration. The only competent evidence of any such authority is to be found in the record of the proceedings of the city council kept according to the provisions of law. By the act establishing the city of Lawrence, St. 1853, c. 70, §§ 6, 7, 10, it is expressly provided that each board composing the city council shall keep a record of its own proceedings, and that a city clerk shall be chosen who shall be the clerk of the board of aldermen. Parol evidence was inadmissible to prove any acts or proceedings of the city council, or that the record of such proceedings as kept by the clerk was erroneous or defective. Mayhew v. District of Gay Head, 13 Allen, 129, 134, and cases cited, There was therefore no legal evidence whatever offered by the plaintiff that the defendants had purchased any fireworks or had authorized any person to use them. The acts of the mayor and other officers of the city who undertook to procure them at the expense of the city, were beyond the scope of their official power or duty, and can in no way be held to be the foundation of charging them in this action. Upon this ground, without determining the question whether the city could be held liable, even if it had appeared that the purchase of the fireworks was duly authorized, the entry must be, in conformity to the agreement of the parties, Judgment for the defendants.