"Police officers can in no sense be regarded as agents or servants of the city. Their duties are of a public nature. Their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising a function of government. The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws, and other similar powers and duties, with which police officers and constables are intrusted, are derived from the law and not from the city or town under which they hold their appointment. For the mode in which they exercise their powers and duties the city or town cannot be held liable.

"Nor does it make any difference that the acts complained of were done in an attempt to enforce an ordinance or by-law of the city. The authority to enact by-laws is delegated to the city by the sovereign power, and the exercise of the authority gives to such enactments the same force and effect as if they had been passed by the legislature. They are public laws of a local and limited operation, designed to secure good order and to provide for the welfare and comfort of the inhabitants. In their enforcement, therefore, police officers act in their public capacity, and not as the agents or servants of the city."

83. Non-liability for acts of health officers.-In Gilboy v. Detroit,70 the city was sued for damages due to the negligence of its board of health in allowing one infected with smallpox to go at large. The plaintiff was the proprietor of a boarding-house to which the infected person came and there became ill with smallpox, thereby causing great damage to the plaintiff's business. But the court held that the

70 115 Mich. 121.

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, and municipalities, in the absence of express statutes fixing liability, are not liable for the negligence of such officers and boards. A like conclusion as to nonliability of the city was reached in Maximilian v. Mayor," which was an action for injuries caused by the negligence of the driver of an ambulance employed by the commissioners of public charities, who in turn were appointed by the mayor. This proposition is well established.

84. Non-liability for acts of fire officials.-The same principle as is applied to police and health officials holds in regard to fire officials. Therefore in the case of Hayes v. Oshkosh,72 involving the question of the liability of the city for the loss of property set on fire by the negligent operation of a fire engine operated by the city fire department, it was held that the city was not liable. A like conclusion was reached in the case of Wilcox v. Chicago,73 where damage was done to the plaintiff's carriage by the negligent driving of the wagon of a hook and ladder company. The same rule would apply to the blowing up of a building by dynamite where it was erroneously judged to be necessary in order to prevent the spread of a conflagration. Also the city was held not liable for the failure of the fire chief to order this done in a case where it would have prevented the spread of

71 62 N. Y. 160.

72 33 Wis. 314.

73 107 Ill. 334.

a conflagration, or to provide sufficient water with which to fight the fire."

85. Apparent conflict in authorities.—But the above principle is not applied with entire consistency, for we find that in Missano v. Mayor,75 which was an action brought to recover damages for the death of a child run over and killed by a horse attached to an ash cart of the street cleaning department, and negligently driven by an employee of that department, the court of appeals held the City of New York liable. The care of the streets is placed by the court in the category of functions which the city performs in its private or proprietary and not in its governmental or public capacity. But to the lay mind this function seems to be very closely allied to, if not a part of, the duty of the city to preserve the health of its citizens. But the court takes the opposite view, as will be seen from the following extract from its opinion:

"It is clear upon principle and authority that the City of New York, in the ordinary and usual care of its streets, both as to repairs and cleanliness, is acting in the discharge of a special power granted to it by the legislature, in the exercise of which it is a legal individual as distinguished from its governmental functions when it acts as a sovereign."

But to our mind the reasoning in the dissenting opinion of Judge Gray is more convincing:

"Duties imposed upon municipalities for the benefit of all citizens, in the exercise of the sovereign power, and which are to be performed by independ

74 Tainter v. Worcester, 123 Mass. 311.

75 160 N. Y. 123.

ent officers, who may take their appointment from the corporation itself, through the nomination of its executive agents, make of the officers servants of the public at large. They are not, then, the agents or servants of the municipal corporation; but they are public officers, agents or servants of the general public, and the corporation is not responsible for their acts or omissions, or for those of their subordinates. In appointing the officer, in obedience to an act of the legislature, it does so in pursuance of a duty imposed by law for the general welfare of the inhabitants, or of the community. This very explicit doctrine rests upon the basis of the distinction between the exercise by a municipality of powers which are delegated to it by the general government, to be exercised for the public welfare, and those which are conferred upon it for some especial benefit and advantage in its corporate capacity."

That the city is liable for negligence of its officers in the construction or repair of its pavements or sidewalks may be said to be settled by the decision of the Supreme Court of the United States in Barnes v. District of Columbia. Yet this does not necessarily carry with it liability for the use of its streets by street-cleaning wagons any more than it does liability for their use by ambulances or fire engines. The question is of course one as to classification of functions with regard to their nature, and upon questions of this sort it is not surprising that there should be conflict in the point of view of those making the classification.

86. Liability under maritime law.-The admiralty courts will not, however, apply the rule of non-liabil

76 91 U. S. 540.

ity which the state courts apply in the case of fire officials, but in a case where they have jurisdiction of the persons and subject-matter, they apply the rule of maritime law which holds the city liable for damages due to the negligent acts of its fire officials. Thus, in Workman v. Mayor of New York," where the barkentine Linda Park, which was the property of the libellant, was injured by the steam fireboat New Yorker while moored to the dock at pier 48 in East River, the Supreme Court of the United States reversed the decision of the Circuit Court of Appeals holding the city not liable. The facts in the case established the negligence of the fireboat. In refusing to apply the rule of the court of the state of New York with respect to the liability of the city for the negligence of its officials, the court, speaking through Justice White, says:

"The proposition, then, which we must first consider may be thus stated: Although by the maritime law the duty rests upon courts of admiralty to afford redress for every injury to person or property where the subject-matter is within the cognizance of such courts, and when the wrongdoer is amenable to process, nevertheless the admiralty courts must deny all relief whenever redress for a wrong would not be afforded by the local law of a particular state or the course of decisions therein. And this, not because, by the rule prevailing in the state, the wrongdoer is not generally responsible and usually subject to process of courts of justice, but because in the commission of a particular act causing direct injury to a person or property it is considered, by the local decisions,

77 179 U. S. 552.