
    B. D. Wheeler v. The City of Cincinnati.
    Kie power conferred by the statute, on cities of this State, to organize and regulate fire companies, and provide engines, etc., for extinguishing fires, is, in its nature, legislative and governmental; and a city is not liable to individuals for damage resulting from a failure to provide the necessary agencies for extinguishing fires, or from the negligence of officers or other persons connected with the fire department.
    Motion for leave to file petition, in error.
    The plaintiff brought his action in the court of common pleas of Hamilton county, seeking to recover from the defendant the damages arising from the casual destruction of his house (situated within the limits of said city) by fire; on the ground that the defendant had failed and neglected to provide the necessary cisterns and suitable engines foi extinguishing fires, in that quarter of city in which his said house was situated, and that certain officers and agents of the fire department of said city had neglected and failed to perform their duties in regard to the extinguishing of said fire, by reason whereof said fire was not extinguished, as it otherwise might, and could have been. A demurrer to his petition, alleging these facts, was sustained by the court, and judgment rendered for the defendant, which was subsequently affirmed by the district court, upon proceedings in error.
    The plaintiff now seeks a review and reversal of those judgments, on the ground of error in sustaining the demurrer to his petition. ,
    
      J. T. Crapsey and Collins c& Herron for. the motion:
    The principles which fix the liability of the city for the negligence of her present firemen, have, as we think, long been established. City of Dayton v. Pease, 4 Ohio St. 80; Commissioners of Hamilton Co. v. Mighels, 7 Ohio St. 118; West v. Trustees, etc., 16 N. Y. 171, and note; Conrad v. Village of Ithica, 16 N. Y. 169; N. Y. & N. H. R. R. v. Schuyler et al., 34 N. Y. 85; Bank of Columbia v. Patterson, 7 Cranch, 300, 306; Weightman v. Corporation of Washington, 1 Black. 52; Mayor of Lyme Regis v. Henly, 2 Cl. & Fin. 331; Russel v. Men of Devon, 2 T. R 667; Mayor of Lynn v. Turner, Cowper, 86; Payne v. Partridge, Carthew, 191; 1 Shower, 55; Yielding v. Fay, 
      Cro. Eliz. 569; Baily v. Mayor, etc., of New York, 3 Hill, 531-2, Denio, 433; Western Saving Fund Society v. Philadelphia, 31 Penn. St. 175; Huston and Wife v. Mayor, etc., of New York, 5 Denio, 113; Storrs v. The City of Utica, 17 N. Y. 108-9; Kavanaugh v. The City of Brooklyn, 38 Barb. 237-8; Barton v. Syracuse, 36 N. Y. 54, 58; Brinkmeyer v. Evansville, 29 Ind. 187; Stakhouse v. The City of Lafayette, 26 Ind. 17-20; S. & C. 1513, sec. 62; Disney’s Ordinances, 448, 476, sec. 19; 474, art. 2, 3, 4; 59 O. L. 74 sec. 5.
    
      J. Bryant Walher (for Walher & Conner, solicitors foi Cincinnati), contra:
    The city is not liable. S. & C. 1513, 1507, 1499; Western Med. College v. Cleveland, 12 Ohio St. 375; Bailey v. The Mayor of New York, 3 Hill, 531; Western Savings Fund Society v. Philadelphia, 31 Penn. St. 175, 183, 189; Moodalay v. The East India Company, 1 Brown’s Ch. R. 469; Mersey Docks v. Gibbs, 11 House of Lords Cases, 707, 727, 731; Jones v. Mersey Docks, 11 House of Lords Cases, 443, 464; Coe v. Wise, 12 Weekly Reporter, 1037, 3 L. R. Q. B. 711; Prather v. Lexington, 13 B. Monroe, 559; Commissioners of Hamilton Co. v. Mighels, 7 Ohio St. 109; Dayton v. Pease, 4 Ohio St. 80; Curwen’s Stat. 145, 996, 1130, 1131; Brinkmeyer v. Evansville, 29 Ind. 187; Dyer, 36 b; Russell v. Mayor of New York, 2 Denio, 461; Coreas v. San Francisco, 1 Cal. 452; Hale v. Lawrence, 3 Zabriskie, 590; Clark v. Syracuse, 12 Barb. 36; White v. The City Council, 2 Hill (S. C.), 571.
   By the Court :

' The laws of this State have conferred upon its municipal corporations power to establish and organize lire companies, procure engines and other instruments necessary to extinguish fire, and preserve the buildings and property within’ their limits from conflagration; and to prescribe such by-laws and regulations for the government of said companies as may be deemed expedient. But the powers thus conferred are in their nature legislative and governmental; the extent and manner of their exercise, within the sphere prescribed by statute, are necessarily to be determined by the judgment and discretion of the proper municipal authorities, and for any defect in the execution of such powers, the corporation cannot be held liable to individuals. Nor is it liable for a neglect of duty on the part of fire companies, or their officers, charged with the duty of extinguishing fires. The power of the city over the subject is that of a delegated quasi sovereignty, which excludes responsibility to individuals for the neglect or non-feasance of an officer or agent charged with the performance of duties. The case differs from that where the corporation is charged by law with the performance of á duty purely ministerial in its character.- We know of no case in which an action like the present has been held to be maintainable. Brinkmeyer v. Evansville, 29 Ind. R. 187; Western College of Medicine v. City of Cleveland, 12 Ohio St. R. 375.

Leave to file petition in error refused.  