certain classes of torts, although liable for other classes. In both cases, therefore, liability or non-liability for tort is not based upon the fact that they are or are not corporations, but upon some other principle, which it is now our purpose to discover.

§ 39. General non-liability of quasi-municipal corpora tions. As already suggested, the towns and counties, even though they be incorporated, are still exempt from liability for tort in most cases. For example, in Askew v. Hale County (3) the county, although made a corporation by the state laws, was held exempt from liability in an action brought for injuries to the plaintiff caused by the negligence of the county authorities in failing to keep a bridge in repair. The basis for the exemption, as stated above, is that the county is an involuntary political or civil division of the state, created by statute to aid in the administration of the state government. As such public governmental agency it shares the immunity of the state from liability for torts committed by its agents, even though the latter be acting within the general scope of their authority in carrying on the particular functions which give rise to the injury. The case of Lorillard v. Town of Monroe (4) led to a similar decision in the case of a town. In holding the town exempt from liability, the court describes the town as being only a political subdivision of the state, created in order to aid the state in the more convenient administration of the state's affairs, such as justice, health, poor relief, assessment and collection of taxes, etc. Town assessor and town collector

(3) 54 Ala. 639.

of taxes, therefore, whose acts caused the damage to the plaintiff in the particular case, are agents of the state although chosen by the people of the town, and so the town is not liable for their misdeeds. Here again the defendant town was a corporation with power to sue and be sued. So, also, in the case of Eastman v. Meredith (5) where the plaintiff was injured while attending the town meeting, through the unsafe condition of the town hall, the town, although a corporation, was held not liable for the plaintiff's injuries.

§ 40. Same: Suggested theories of this. In many of the cases considerable stress is laid by the court on the fact that counties and towns are involuntary territorial and political divisions of the state, while full municipal corporations, i. e., cities and villages, are voluntary organizations. On the basis of this difference, it is suggested that cities and villages are liable in tort because they voluntarily became corporations, while counties and towns are exempt because the opposite is true of them. The trouble with this theory is twofold: (1) Some municipal corporations are involuntary organizations and yet are liable in tort, as we shall see in detail later; and (2) in some cases quasi-municipal corporations become liable in spite of the involuntary character of their creation. The theory, therefore, fails to explain the state of the law and must be discarded. The true test seems to be the one already suggested: wherever the public corporation is transacting state business, it shares the state's exemption from tort liability; where it is attending to

what are primarily local matters, it becomes liable. Whether this ought to be the law, need not be here questioned; but that it seems to be the law can be substantiated by an examination of the cases.

§ 41. Exceptions to non-liability of quasi-municipal corporations. According to the principle stated above, if the public corporation is carrying on any business except that connected with matters regarded primarily of state importance, it becomes liable for injuries tortiously inflicted upon other persons. Logically, therefore, if a quasi-municipal corporation ceases to be a purely state agent, it should become liable, and the cases indicate that this is the law. For example, in the case of Moulton v. Scarboro (6) the town in carrying on its poor farm undertook to derive a profit from the same, i. e., it went into business to that extent. Incidentally, it owned and kept a ram for the propagation of sheep, and the ram inflicted injuries upon the plaintiff under circumstances such that a private owner would have been liable. It was held that by engaging in a business, it became liable for the negligent management of property used in such business and so liable to the plaintiff. Ordinarily, as we have seen above, the quasi-municipal corporation is not liable for injuries arising from its negligent management of its property, as in the cases of the town hall and county court house already cited and discussed. The principle established by Moulton v. Scarboro has been followed in many other cases which cannot be cited here. In view of the fact that towns and counties ordinarily do little

that is not, from a local point of view, public, governmental, or state business, the opportunities for applying this principle of liability so as to make the town or county liable are not numerous. The distinction between state matters and those of local importance only becomes, however, exceedingly important in dealing with the liability of cities and villages.

§ 42. Non-liability of municipal corporations: Acts of police officials. The application of the principle to cities and villages comes out very clearly in the case of torts committed by peace officers. It should first of all be noted that in all our discussions we assume that the injury to the plaintiff has occurred under circumstances such that a private person would be liable had the same injury been caused to the plaintiff by his servant, i. e., that the ordinary rules as to tort liability have been satisfied, and that the only question is as to the exemption of the public corporation from liability under such circumstances. In Buttrick v. Lowell (7) the plaintiff had been assaulted and battered by two police officers of the city who were arresting him, ostensibly in pursuance of the ordinances of the city, but actually under circumstances not justifying any arrest at all. The court held the city not liable, saying:

"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; but this did not render

them liable for their unlawful or negligent acts. 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 bylaw 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 directly 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."

A similar case is that of Culver v. Streator (8) in which the plaintiff was negligently shot by a person employed by the city to enforce a city ordinance which forbade unmuzzled dogs to run at large in the city. The court held the city not liable. The interesting thing about both these cases is that the enforcement of the law, be it state law or merely city ordinance, is regarded as a matter public and governmental in character such that the state is interested in it; and the city shares the state's exemption from liability for damage negligently inflicted