§ 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 In a Georgia case (19) it appeared that the city of Augusta repealed an ordinance forbidding cattle to run at large in the streets of the city.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

and killed by swine which were running at large in the street. The plaintiff sought to hold the city liable for the resulting loss of the son's services, expenses for burial, etc. The court held that the city was neither bound to enact any such ordinance nor to enforce it when enacted. The same principle led to the exemption of the city of Cleveland from liability for the destruction of plaintiff's property by a mob which the city officials made no proper efforts to control (21). In another case the city permitted to remain standing a dangerous wall, which, though situated on private property, was liable to fall into the street. Plaintiff sued for damages due to the death of a daughter killed by the falling of the wall into the street while the daughter was passing. A city ordinance made a wall of this kind a nuisance, but the city officials had permitted it to remain standing for two or three months. Needless to say, the city was held not liable (22).

§ 49. Licensing a nuisance. A series of cases has however seriously limited the scope of this rule which relieves the city of responsibility to persons injured by a failure to enforce ordinances. If, instead of merely failing to enforce the ordinance, the city issues what purports to be a permission to someone to do a dangerous thing in a public street or place, the city is, by many courts, held to be responsible for any injuries which result. A leading case is Cohen v. Mayor of New York (23) in which the city granted a license to a grocer to keep his wagon,

(21) Western College v. Cleveland, 12 O. St. 375.

(22) Kiley v. Kansas City, 87 Mo. 103.

when not in use, in the street in front of his store, the thills being held up by strings. A passing wagon struck the grocer's wagon, turned it partly round, and the thills fell and killed a person who was lawfully passing on the sidewalk. The city was held liable, on the ground that it had licensed the maintenance of a nuisance in the street. In a similar case in the same state the city issued a license authorizing the discharge of fireworks in the city streets, and was held liable for damage which resulted therefrom (24). Other cases applying the same rule of liability are Stanley v. Davenport (25) in which the nuisance licensed was a steam motor on a street railway, and Little v. Madison (26) in which the nuisance was a bear show.

§ 50. Same: Criticism of rule. It is difficult to find a satisfactory basis on which to place this exception to the rule of non-liability in the performance by the city of police functions. If the city refrained from acting at all, either by not enacting an ordinance or failing to enforce one it had enacted, it would not be liable. It might, therefore, it would seem, forbid all bear shows except on a certain street, and would not be liable for results from a show held on the excepted street; or the city officials might knowingly fail to enforce an ordinance which forbade the bear show, and still the city would be exempt from liability. If, however, the city authority which has the duty of issuing licenses issues an illegal license for all the cases admit the license of the city cannot legally cover nuisances-then the city becomes

(24) Speir v. Brooklyn, 139 N. Y. 6. (25)

Stanley v. Davenport, 54 Iowa 463.

liable. A contrary view is maintained in Burford v. Grand Rapids (27), in which the common council of the city set apart certain streets for coasting purposes Judge Cooley, in holding the plaintiff could not recover a judgment against the city for injuries inflicted upon his horse by a coasting party, held that the court could not determine whether coasting on certain streets of a city was or was not a nuisance; that the city council was charged with determining that question, and it having done so, the court would not review its determination. It would seem that the same view would lead to a different decision in the New York, Iowa, and Wisconsin cases cited and discussed above.

§ 51. Non-liability for school and tax officials. In carrying on the public school system, the city is regarded as an agent of the state performing a public duty, and accordingly not liable for acts of the school officials which inflict damages on other persons. For example, the janitor of a school building negligently put crude petroleum into a stove in trying to kindle a fire, producing an explosion that injured the plaintiff, a pupil in the school. The plaintiff was denied a recovery (28). In another case the injuries of the plaintiff, for which a recovery was denied, were due to the negligent blasting operations carried on in excavating for a public school (29). A similar rule obtains in reference to tax officials, the function of assessing and collecting taxes being essentially an exercise of sovereign power, and so falling within that class of

(27) 53 Mich. 98.

(28) Ford v. School District, 121 Pa. St. 543.