¶1dissenting:
¶2I dissent. I would affirm the trial court on the ground that the complaint fails to state a cause of action against the individual defendants in their capacities as superintendent of the Denver school system and as the principal of Gove Junior High School.
¶3The majority would allow this action to proceed against them apparently on the theory that they are to be held accountable for alleged negligence in performing or not performing certain functions within the purview of their offices. It is my contention that the trial court could and this court can and should take judicial notice of the statutes of this state vesting the powers and duties alleged to have been breached here in the Board of Edu*535cation of each school district. 1965 Perm. Supp. 123-30-9 and 10 et seq.
¶4The opinion quotes language from Liber v. Flor, supra, which in turn cites Schwalb v. Connely. I think that the precise language from the Schwalb case is interesting: “The doctrine of respondeat superior applicable to the relation of master and servant does not apply to a public officer so as to render him responsible for the acts or omissions of subordinates whether appointed by him or not, unless he, having the power of selection, has failed to use ordinary care therein, or unless he has been negligent in supervising the acts of such subordinates, or has directed or authorized the wrong.” (Emphasis added.)
¶5Schwalb then goes further:
¶6“In order that the stated exceptions to the rule may have consideration, it is pertinent to observe, they must be alleged in the complaint, not done here.” Citing Baisley v. Henry, 55 Cal. App. 760, 204 P. 399. (Emphasis added.)
¶7A good statement of the general rule is found in a 1942 California case:
¶8“A public officer is not responsible for the tortious acts of a subordinate who is not in his private service but is himself a servant of the same governmental agency unless such officer has directed or cooperated in the acts done or unless, having unlimited power of appointment and removal, the officer has failed to use ordinary care in the selection or retention of the subordinate. The reason for these limitations upon the liability of a public officer is that, since the liability must be founded upon his negligence, it is unfair and unjust to hold one responsible for the negligence of another which he had no power, in the exercise of ordinary care, to control.” Fernelius v. Pierce, 123 P.2d 910 (1942). See also Stiebitz v. Mahoney, 20 Conn. Sup. 129, 126 A.2d 148 (1956); Klikowski v. Ziegler, 149 N.E.2d 773 (Ill. 1958); Hirych v. State, 136 N.W.2d 910 (Mich. 1965); Ogle v. Billick, *536453 P.2d 677 (Ore. 1969); See also the cases cited at 102 A.L.R. 174, § I.
¶9As appears from the allegations in the complaint, defendants are charged in their personal capacity for failing to provide care and supervision of the students, for failure to assign sufficient teachers to supervise them, for failure to provide a safe way to cross the street, and for failure to provide a safe place to study and play. Neither the superintendent of the Denver school system nor the principal of any Denver public school has any personal responsibility for the hiring or firing of teachers; cannot determine the number of teachers to be hired in each school; cannot select the school site — be it on a busy thoroughfare or elsewhere; cannot determine the location or the size of the playground space or whether it should be adjacent to, across the street from or several blocks away from a school building. Control of the streets and highways, we take judicial notice, is vested in either city or the state or by joint action of both. Where mechanical signals are provided, they control the intersection and no teacher or school official either has the duty or is empowered to take personal control of the flow of traffic.
¶10It is obvious to me that any allegation that these individual school officials have breached duties or omitted to perform duties which by law are plainly imposed on the school district board of education, does not state a cause of action.