by its agents while attempting to perform this public duty. Of course the same rule holds for quasi-municipal corporations. For example, in Brown v. Guyandotte (9) a prisoner in the town jail was injured by a fire which occurred in the jail because of the negligence of the town official who was in charge of the same. There was no liability on the part of the town, as the management of a jail is a function connected with the administration of criminal justice.

§ 43. Same: Acts of health officials. A similar result is reached in cases dealing with the negligent acts of health officials. In a Michigan case (10) the city board of health allowed a person known to have been exposed to small pox to go at large, and as a result he was received into plaintiff's boarding house, where he became ill with small pox, causing loss and damage to plaintiff. A recovery was denied on the ground that the duty of protecting the public health was a public, governmental and not a corporate or private duty. The following extract from the opinion of the court expresses the gist of the matter so clearly that it deserves quotation:

"The universal rule is that such boards and officers are not acting for private, but for public purposes; they represent the entire state through the municipality, a political division of the state; and municipalities, in the absence of express statutes fixing liability, are not liable for the negligence of such officers and boards. The rule

is so clearly stated by Justice Folger in Maxmilian v.

Mayor (11) that we quote it: "There are two kinds of duties which are imposed upon a municipal corporation: one is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is public and is used for public purposes. The former is not held by the municipality as one of the political divisions of the state; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municipality is like a private corporation, and is liable for a failure to use its power well, or for any injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the state, and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for non-user nor for mis-user by the public agents.'"'

In Maxmilian v. Mayor (11) the plaintiff's intestate was killed by being run over by an ambulance belonging to the city, the driver, whose negligence caused the accident, being appointed by the commissioners of public charities, who in turn were appointed by the mayor. A recovery against the city was denied, on the usual ground. § 44. Same: Fire officials. Under the same classifica

(11) 62 N. Y. 160.

tion as police and health fall the officials whose duty it is to protect the safety of the public from fire. Thus in the case of Hayes v. Oshkosh (12) the city, through its fire department, so negligently operated a steam fire engine that property belonging to the plaintiff was set on fire and destroyed. The court held that the city was not liable. The same result was reached in a case in Illinois in which a hook and ladder truck collided with the plaintiff's carriage (13). The same rule, of course, applies where the city fails to provide sufficient water to put out a fire, i. e., to acts of omission as well as of commission (14). It should be noted that the rule of the admiralty or maritime law, as construed by the courts of the United States, often makes a municipal corporation liable under circumstances which, according to the common law, exempt the city from all liability. Thus in Workman v. Mayor of New York (15) the Supreme Court of the United States held that the city was liable for wrongs inflicted by a fire boat owned by and under the direct control of the city fire department, since that department was "an integral branch of local administration and government of the city." The rule seems to be that if the relation of master and servant exists, the owner of the offending vessel is liable for a maritime tort. A discussion of the maritime law, however, is beyond the scope of this article.

§ 45. Same: Further comment and illustration. The term police must, in connection with this subject, be given a wide meaning. Any official whose duties involve the protection of the peace, safety, or health of the community, is an official, for the result of whose negligent acts the public corporation is not liable. In Mead v.New Haven (16) it appeared that, by virtue of authority given it by its charter, the city of New Haven appointed an inspector of steam boilers, who, while inspecting plaintiff's boiler, negligently subjected it to improper tests and in consequence damaged it. The city was held not liable for the injury. Apparently the care of the poor is in the same category, for in another case the plaintiff's property was destroyed by a fire negligently caused by those in charge of the county poor farm, and the rule of non-liability was applied. Curiously enough, cleaning the street of a city is regarded by the New York courts as a private and local function and for negligence in connection therewith the city is liable (17). In the case as it arose, the plaintiff was injured by the negligent driving of the driver of a street cleaning cart, and the plaintiff was allowed to recover against the city. We, therefore, have the interesting and apparently absurd result that a plaintiff run over by the negligence of the driver of an ambulance cannot recover from the city, but if it be a street cleaning cart, a recovery is allowed. It would seem that cleaning the streets might well be regarded as a public function, connected with the protection of the health of the community.

(16) 40 Conn. 72.

(17) Missano v. Mayor, 160 N. Y. 123.

§ 46. Non-liability for failure to enact ordinances. It is one of the functions of municipal corporations to exercise a local power of legislation, i. e., to enact local laws to regulate minor matters upon which the state law is silent and which are better dealt with by local regulations. Such municipal laws are called ordinances, but are as binding upon the public as laws passed by the legislature. It is obvious that the exercise of legislative power must be regarded as public or governmental in character, and accordingly it is held by all the courts that a public corporation is never liable for failing to enact ordinances which it had power to adopt. One of the leading cases is McDade v. Chester (18), in which it appeared that the city council, having power to limit or prohibit the manufacture of fireworks within the city, failed to do so. A fireworks plant was erected and took fire, and plaintiff as a result of the fire was injured. The city was, of course, held not liable. Even though the city once passes an ordinance, it is free to repeal the same without incurring any liability to persons injured as a result of the lack of regulation or prohibition of dangerous businesses. In a Georgia case (19) it appeared that the city of Augusta repealed an ordinance forbidding cattle to run at large in the streets of the city. The plaintiff was a child who, while lawfully in the streets, was gored by a cow which had been turned out to pasture, and the city was held not liable for the injury.

§ 47. Same: Suspension of ordinances. In a similar case, the city council suspended for a short time the