§ 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.

§ 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

(18) 117 Pa. St. 414.

operation of an ordinance forbidding the use of fireworks in the streets of the city, and during that period the plaintiff's building was destroyed by a fire originating from fireworks discharged by boys in the streets. In holding the city exempt from liability, the court said: "If a court should undertake to say that, by reason of this general grant of power, it was the duty of the municipal authorities of Charlotte to pass and retain in force an ordinance prohibiting the use of fire crackers, etc., and that the city was liable to any person damaged by reason of such omission, there is no reason why the court should not adjudge the city liable in every case where the authorities had omitted to pass any other ordinance, which, in the opinion of the court would have been proper for the good government of the city, or the health or safety of the inhabitants, or of their property. A court assuming to do this would arrogate to itself the legislative power of the city authorities, and it cannot be supposed possible that any court will be guilty of such an usurpation."

§ 48. Same: Failure to enforce ordinances. Not only is the city or village exempt from all liability for results flowing from its failure to enact ordinances within its powers, but it is also not responsible for consequences due to a failure on the part of its officers to enforce ordinances which have been passed. Thus in Levy v. New York (20) the city had duly adopted an ordinance forbidding swine to run at large in the city streets. The officers charged with the enforcement of the ordinance in question failed to do so, and plaintiff's son, a boy of eight, was attacked

§ 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

(18) 117 Pa. St. 414.

operation of an ordinance forbidding the use of fireworks in the streets of the city, and during that period the plaintiff's building was destroyed by a fire originating from fireworks discharged by boys in the streets. In holding the city exempt from liability, the court said: "If a court should undertake to say that, by reason of this general grant of power, it was the duty of the municipal authorities of Charlotte to pass and retain in force an ordinance prohibiting the use of fire crackers, etc., and that the city was liable to any person damaged by reason of such omission, there is no reason why the court should not adjudge the city liable in every case where the authorities had omitted to pass any other ordinance, which, in the opinion of the court would have been proper for the good government of the city, or the health or safety of the inhabitants, or of their property. A court assuming to do this would arrogate to itself the legislative power of the city authorities, and it cannot be supposed possible that any court will be guilty of such an usurpation."

§ 48. Same: Failure to enforce ordinances. Not only is the city or village exempt from all liability for results flowing from its failure to enact ordinances within its powers, but it is also not responsible for consequences due to a failure on the part of its officers to enforce ordinances which have been passed. Thus in Levy v. New York (20) the city had duly adopted an ordinance forbidding swine to run at large in the city streets. The officers charged with the enforcement of the ordinance in question failed to do so, and plaintiff's son, a boy of eight, was attacked