
    Fowler, Admx., v. The City of Cleveland.
    
      Municipal corporations — Liability for negligence — Governmental or ministerial functions — ■Respondeat superior applies, when — Constitutional law — Of redress in courts — Negligent operation of fire truck.
    
    1. Section 16, Article I of the Constitution, guarantees to every person for injury done him in his lands, goods,' person or reputation remedy by due course of law.
    2. It is not the policy of government that the state or any of its subdivisions shall, in the absence of special provision, indemnify persons for loss or damage either from lack of proper laws or administrative provisions; nor from inadequate enforcement of laws or the inefficient operation of such provisions.
    3. But where a wrongful act which has caused injury was done by the servants or agents of a municipality in the performance of a .purely ministerial act which was the proximate cause of . the injury without fault on the part of the injured person respondeat superior applies and the municipality is liable.
    4. Frederick, Admx., v. City of Columbus, 58 Ohio St., 538, overruled.
    (No. 16094
    Decided July 8, 1919.)
    Error to the Court of Appeals of Cuyahoga county.
    This was an action by the administratrix to recover damages for injuries wrongfully inflicted upon W. H.' Fowler, from which he died.
    The deceased was going northerly on the east side of Ontario street in the city of Cleveland and was at the intersection of the street with the southerly side of the public square. While- on the easterly crosswalk he was struck and run over by a motor hose-truck belonging to the city, which was returning to its station in that neighborhood,
    
      The petition alleged that it was driven in a reckless and negligent manner diagonally from the northeast, cutting the corner sharply at a high rate of speed, without warning, and on the wrong side of the street.
    The common pleas court sustained a demurrer to the petition on the ground that the city was not liable for the negligent driving of the hose-truck operated by a member of the city fire department while in the performance of his duties. The petition was dismissed, this judgment was sustained by the court of appeals, and error is prosecuted here.
    
      Messrs. Payer, Winch, Minshall & Karch, for plaintiff in error.
    
      Mr. W. S. FitzGerald, director of law, and Mr. Alfred Clum and Mr. James T. Cassidy, assistant directors of law, for defendant in error.
   Johnson, J.

The petition sets forth with great detail the alleged negligent acts of the defendant in the operation of the motor truck on the public street at the time of the injury. It states an undoubted cause of action if alleged ¿gainst any defendant corporation liable for the acts of its servants in charge of such a vehicle.

The trial court entertained the view that the case was ruled by Frederick, Admx., v. City of Columbus, 58 Ohio St., 538, and it is conceded that if that case is not now reversed or modified the judgments of the courts below should be affirmed.

The syllabus in that case lays down the following proposition: “A municipal corporation is not, in the absence of any statutory provision, liable in damages to one injured by the negligent acts of its fire department, or any of its members.”

The conclusion was arrived at in obedience toj a principle long embedded in our jurisprudence, ] and generally enforced, that no liability attached;! to the sovereignty, or any of its subdivisions, im the exercise of any governmental function.

The rule has been followed by the courts of England and this country with some variations for a long period of time. It would not be profitable to cite or examine the cases in detail.

In the opinion in the Frederick case a fair statement is made of the reasons of the rule as applied to fire departments, viz.: “The ground on which the non-liability of municipal corporations is placed in such cases, is that the power conferred on them to establish a department for the protection of the property of its citizens from fire, is of a public or goyernmental nature, and liability for negligence in its performance does not attach to the municipality unless imposed by statute. The non-liability of the city in such cases rests upon the same reasons as does that of the sovereign exercising like powers; and are distinguished from those cases in which powers are conferred on cities for the improvement of their own territory and the property of their citizens..” Recognizing the existence of the distinction referred to, and the liability of cities in the latter class of cases, the court-remarked at page 549: “It is not always a simple matter to determine to which class of the duties of a municipal corporation a given case belongs.”

We think it may be fairly said that there has been arrowing dissatisfaction with any comprehensive rule (and its unsatisfactory and unjust results) which exempts municipalities from liability for all acts which have loosely been classed as governmental.

In England a distinction was long ago made in the maritime law, and the general rule was denied application in maritime cases; but the reasons and logic upon which the distinction was made are not so satisfying or clear as those upon which the criticism of the rule itself is based.

The distinction, however, was recognized in Workman v. New York City, 179 U. S., 552, where the "city was held liable by maritime law for the negligence of its servants in charge of a fireboat while hastening to put out a fire raging at the head of a dock, in consequence of which the fireboat collided with and injured another vessel. The federal supreme court reversed the judgment of the United States court of appeals, which had held the city to be exempt from liability under the general rule to which we have referred. The court in holding that the rule did not apply, in maritime law at least, say at page 573: “Because we conclude that the rule of the local law in the State of New York — conceding it to be as held by the Circuit Court of Appeals — does not control the maritime law, and, therefore, affords no ground for sustaining the non-liability of the city of New York in the case at bar, wé must not be understood as conceding the correctness of the doctrine by which a municipal corporation, as to the discharge of its administrative duties, is treated as having two distinct capacities, the one private or corporate, and the other governmental or sovereign, in which latter it may inflict a direct and positive wrong upon the person or property of a citizen without power in the courts to afford redress from such wrong. * * * And although this opinion is confined to the controlling effect of the admiralty law, we do not intend to intimate the belief that the common law which benignly above all considers the rights of the individual, yet gives its sanction to a principle which denies the duty of courts to protect the rights of the individual in a case where they have jurisdiction to do so.”

The United States court of appeals in New York City v. Workman, 35 U. S. App., 201, 204, which was reversed by the United States supreme court, supra, concisely set forth the general rule and the reasons for it, viz.: “It is familiar law that the officers selected by a municipal corporation to perform a public service for the general welfare of the inhabitants or the community, in which the corporation has no private interest, and from which it derives no special benefit or advantage in its corporate capacity, are not to be regarded as the servants or agents of the municipality, and for their negligence or want of skill it cannot be held liable. * * * The duties intrusted to them do not relate to the exercise of corporate powers; and hence they are the agents or servants of the public at large. * * * The test of corporate liability for the acts of the officers of the municipality depends upon the nature of the duties with which they are charged; if these, being for the general good ''of the public as individual citizens, are governmental, they act for the State. If they are those which primarily and legitimately devolve upon the municipality itself, they are its agents.”

The line of demarcation between acts which artermed governmental, and those which are ministerial or proprietary, done in the performance of ¿"corporate function, has not been accurately defined in cases where the liability of a municipality was involved. It is of course everywhere recognized that the exercise of the legislative will is governmental. The power 'to determine whether certain steps shall be taken in the-interest of the public welfare is governmental, and the exercise and expression of the discretion as to the kind of steps and the extent of them is governmental. But a municipal corporation is a vastly different thing now from what it was in the early days. Then its function was very largely expressed in the exercise, as a political subdivision, of the delegated and limited powers of sovereignty. It was af favorite maxim of the early times in this country that that government is best which governs least, and the authority of the federal government to make internal improvements was long contested. It was the natural expression of protest against the ancient idea that the sovereign was the active and all-pervading influence, and that the duty of the people was to exalt the sovereignty.

Now, the activities ‘and undertakings of a municipal corporation are manifold. They reach and touch.in countles.s directions. It seems to be utterly unreasonable that all these activities and enterprises which are brought closely home to the] lives of all of the people of the municipality must still be regarded as bound up in the vague and uncertain sphere of what is called a governmental function.

In the early days protection against fire was provided by voluntary fire departments. All of the necessities of the people were supplied and taken care of by private citizens and by companies.

The revolutionary change has been brought about .by the advent of new conditions, changes in the means of communication and in the entire method of supplying the wants of the community; so. that a. municipal corporation has now come to be a dual ..entity. It is no longer a mere subdivision for the expression of the sovereign will in the particular locality, but it ha§ entered the field-'; and does the things that were formerly done by;] private persons in the manner referred to.

A modern city may be said to be a great public service corporation, and no reason is apparent, why, in the respects in which it entrusts purely ministerial duties to agents and employes, it should not be subject to the liabilities of such persons and companies. When the government acts itself, as for instance in the taking of the property of a citizen, the constitution itself prescribes the proceeding by which the government acts and under which the citizen is safeguarded. No injury is done the citizen, for he held his property always subservient to the public welfare.'

Now, in this, case, it was stated that the proof would have shown that the motor truck was returning to its station when it was recklessly driven over the decedent, who was without fault. It would of course be conceded that if the truck had been owned by and driven by the servant of a private corporation the liability would ■ be fixed, and it is difficult to understand the justice of ai rule which denies to a citizen the protection of the; law and the remedy guaranteed by the constitution when injury is thus done him by the servant of a! city instead of a servant of a private corporation., It would seem to be clearly a case in which the reason of the rule having failed the rule itself should be set aside as to such injuries.

It would of course be admitted the municipality was under no obligation to provide any fire department, and that the matter of deciding whether it should have a fire department, and, if so, what sort, and the extent of the services that the city would render on the general subject, is governmental. No complaint could be made concerning the exercise of that governmental power. But when it has determined all of these matters, and has placed an instrument upon its streets, which, when negligently and carelessly operated, is dangerous to the lives of its citizens, then the opera- , tion of this dangerous instrument, while govern- -' mental, • as being operated by the government for" the public welfare, yet is ministerial and proprietary. It is performed by agents who as such have no part in the decision or determination of the sovereign will. Their relation is precisely the same as the agent of a private person. When the functions of government were negative rather than positive the results of non-liability for any and eveiy act did not attract close attention or inquiry. To adhere to the ancient' rule in the presence of existing relations would seem to involve the obvious contradiction that the state, which is formed to protect society, is under no obligation, When acting itself, to protect an individual member of society. Such conceptions of sovereign prerogative are not only illogical, but they offend the spirit of our institutions. We have successfully striven under a system of checks and balances, to reconcile liberty with authority. Authority should be reconciled with justice.

In many ways the legislation and the decisions of the courts of the country have recognized these altered conditions. For instance the duty to keep the streets open, in repair and free from nuisance has been made statutory, and the liability of municipalities for failure to comply with this statutory requirement has been generally enforced. Likewise the liability of a city for negligence in the construction of improvements on its own property has been enforced in most jurisdictions.

The general assembly of Ohio has, by statute, created a liability against a county to persons injured by mob violence. In Ohio it has been provided by statute that each municipality shall be a body politic and corporate. Provision is made for the use of a seal, that it may sue and be sued and acquire property by purchase, gift, etc., and by Section 4 of Article XVIII'of the Constitution, adopted September, 1912, full power has been conferred upon a municipality to “acquire, construct, own, lease and operate, within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants,” and likewise power has been conferred upon it to contract with others for any such product or service. So that it is apparent that the municipality has become a body corporate, as well as a body politic. The provision that it may sue and be sued does not create any new liability. But the conception of public policy -under which the municipality as a subdivision of the sovereign power could not be sued has long been abrogated.

Moreover, Section 16, Article I of the Constitution, which guarantees to every person for injury done him in his land, goods, person, or reputation, remedy by due course of law, was amended by the . people in 1912 by the addition to that section which provides that suits may be brought against the state in the courts and in the manner to be provided by law. That is to say, the state, by its amendment to the constitution, made by the people, has surrendered the ancient privilege of exemption from suit. The legislature has merely the power and the duty of prescribing the court and the manner in which the suit may be brought. The statutes which had theretofore been enacted permitting municipal corporations to sue and be sued are, of course, perfectly consistent with the amendment to the constitution above referred to, and, therefore, legally provide the manner and method of bringing suit against municipal corporations.

Of course we must keep in mind that remedy is not guaranteed by Section 16, Article I of the Constitution, for every damage or loss.

The constitution does not define a legal injury or locate liability. These must be determined “by due course of law.” For example, if the injury was the result of unavoidable accident or of the concurrent neglect of the injured person and another there is no remedy. The law must define the duty.

The rule respondeat superior itself is a creature of the common law, as are also the rules as to fellow servant, assumption of risk, contributory negligence, and the rules as to liability generally for negligence.

All were made by legislatures or courts.

There is no property right or guarantied right in these rules of law, and they may be added to or repealed by the legislature. Mondou v. N. Y., N. H. & H. Rd. Co., 223 U. S., 1; N. Y. Cent. Rd. Co. v. White, 243 U. S., 188, and Arizona Copper Co. v. Hammer, 250 U. S., 400, decided June 9, 1919.

Where such a- rule had its origin in the decisions of courts it may be changed by the courts in the light of experience unless it has become fixed by constitutional or legislative provision.

The rule of law must be declared. If the old rule is found to be unsuited to present conditions, or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.

That the common law has within itself the qual-; ity and capacity for growth and adaptation to new conditions has been one of its most admirable features.

Our constitutions, state and federal, were made with the full conception that they had the inherent capacity to comprehend and meet the requirements of the new and various experiences which would arise out of the development of the country.

While it is perhaps true that the rule of exemption of the sovereignty, as originally declared in England, had its genesis, in the maxim that the “King can do no wrong,” and that in a general way that rule was adopted and applied to declare the exemption of the government in this country, yet, as already stated, there was. a very early disposition to draw a distinction between governmental and corporate functions and to hold municipalities liable for negligence in the performance of the latter. It must be.noted that the courts of this state have repeatedly declared that they will adopt the principles of the common law only so far as those principles are adapted to our circumstances, state of society and form of government.

We think it may be said that the reason why the courts have been slow to declare and enforce a rule of liability against municipalities in the working of the new relationship which they have assumed is because they have felt the difficulty, in the presence of the manifold angles of the situation, of accurately defining a line between what is governmental and what is ministerial or corporate. In fact much of the difficulty i§ because of the persistence of antiquated and outworn terminology. Where a municipality (whether termed a governmental agency or a body corporate) with the sanction of the state has assumed the performance of a work or industry or enterprise formerly carried on by the citizenship, that of itself, so far as its practical operation is concerned, stamps it as a corporate or ministerial work. So far as this case is concerned the facts sufficiently show the distinction referred to, and it must be remembered that the liability in any case could only arise where there was a duty to exercise care towards the public and towards the injured person under the circumstances of the particular case, and where there was a wrongful violation of that duty by an act which was the proximate cause of the injury to the plaintiff who must himself have been without fault.

The emergency of fire and the excitement attendant upon it, the necessity for haste, the duty of extra caution on the part of bystanders, or those passing in the neighborhood, and similar circumstances, are all elements to be considered in determining whether or not there was actionable negligence in the situation. If; for example, a motor truck was returning from a fire, a very different situation would be presented for the consideration of the trial court and the jury from one in which it was hurrying to a fire.

It is not the policy of government to indemnify persons for loss either from lack of proper laws or administrative provisions, or from inadequate enforcement of laws, or the inefficient administration of provisions which have been made for the protection of persons and property. The unwisdom and impracticability of such a system are easily apparent. But we hold that where a wrongful act, which has caused injury, was performed by! the servants of a municipality in the performance; of a purely ministerial act, which was the proximate cause of thq injury, without fault on the part ‘ of the injured person, the municipality is liable, and the fact that it derives no pecuniary profit; from the thing done does not change the rule. The! application of the ordinary rules for the determination of liability in similar' cases will sufficiently, safeguard the public corporation, and the enforcement of the rule we have declared will doubtless induce greater caution for the protection of individuals.

For these reasons the Frederick case is overruled and the judgments below will be reversed.

Judgments reversed.

Nichols, C. J., Matthias, Donahue and Robinson, JJ., concur.

Wanamaker, J.,

concurring. I heartily agree with the majority in the soundness of this judgment. I as heartily disagree upon the grounds of the Judgment.

/Probably no case has been before this court in years that touches as closely as does this case the primary and paramount purpose of the American government.

For centuries there have been three schools of political thought, finding concrete expressions, generally in modified form, in some one or more of the nations of the.world.

The autocratic form of government, which is one of the oldest and most universal, especially in earlier days, is well personified by the great Louis XIV of France, who presided over the destinies of that nation in the 17th century. The prevailing policy of his administration, as by himself declared, was:

“I am the state. * * * Kings are absolute lords; to them belongs naturally the full and free disposal of all property of their subjects, whether they be churchmen or laymen. For subjects to rise against their prince, however wicked and oppressive he may be, is. always infinitely criminal. God, who has given kings to men, has willed that they should be revered as his lieutenants, and has reserved to himself alone the right to review their conduct. His will is that he who is born a subject should obey without question.”

It will be observed from this creed of Louis XIV* that the individual was completely eliminated. His chief duty was to “revere his lord” and “obey without question."

The communistic form of government, or its more modern style bolshevism, or radical socialism, makes men in the mass the sovereign power and eliminates the individual man from all consideration as effectually as does autocracy. The individual man is merely like one of the ants in the hill, merely an atom in the political world. There .is neither room, occasion nor desire for individual initiative, enterprise or achievement, save the dead level of the mediocre.

In both these forms of government the individual man is the very last consideration, and that only to please the autocrat upon the one hand or the community upon the other.

The third school, typified by the American democracy, is founded upon an entirely different principle. The great Magna Charta of American democracy is concededly the Declaration of Independence. The immortal Jefferson wrote these immortal words:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Now, when a truth is “self-evident,” it is. unnecessary to either argue for it or against it, or attempt further to demonstrate it. At all events these truths have become self-evident in the history of American democracy.

What are these truths as Jefferson enumerates them?

1. The unalienable rights of men, among which are “life, liberty and the pursuit of happiness.”

2. That governments are instituted “to secure these rights.”

3. That these rights are best secured by governments “deriving their just powers from the consent of the governed.”

Under the American system the individual is the primary and paramount consideration, as conceived and declared by Jefferson and his school, and likewise those who have followed in his footsteps.

This was. the doctrine of Abraham Lincoln and those who have followed in his footsteps, for in my judgment Lincoln was the greatest interpreter and the greatest follower of Jeffersonian democracy, and it may be observed that Abraham Lincoln quoted Thomas Jefferson more than he quoted all other American statesmen combined.

Under American democracy, as declared by Jefferson and interpreted by Lincoln, the individual’s rights, were ever to be safeguarded and secured by government, federal, state and local.

The Constitution of Ohio, in the Bill of Rights, as adopted in 1851 and still in force (Section 16, Article I), contained the language:

“And every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.”

This is a reaffirmation of .the Jeffersonian doctrine of the Declaration of Independence, written into the Constitution of Ohio by our early fathers.

. It will be observed that there is no qualification or limitation as to these rights or as to a redress when these rights are violated. When the individual receives the injury comprehended within the above provision of the Bill of Rights, he shall have “remedy” by due process of law. That constitutional grant and guaranty is so plain and persuasive that it does not lie. in the power of any state legislature or court to disregard or nullify it.

The judgments below in the case at bar which denied the plaintiff the right to recover as a matter of law were based on the Frederick case, 58 Ohio St., 538.

The syllabus in that case reads:

“A municipal corporation is not, in the absence of any statutory provision, liable in damages to one injured by the negligent acts of its fire department, or any of its members,” etc.

An examination of the opinion sustaining above syllabus shows an entire absence of any consideration whatever of said Section 16 of the Bill of Rights.

,The opinion further discloses an entire absence of reference to the old statute that has been in. force in Ohio for many years making a-municipal corporation “a body corporate” with the right “to sue and be sued.”

It is striking strange indeed that the opinion should be silent as to both of these important propositions, the one constitutional, the other statutory. If the doctrine of the syllabus is sound, then the existence of such a 'statute called for an exactly contrary judgment.

The whole doctrine of immunity given to a? sovereign state was based upon the assumption of the divine right of kings — a king can do no wrong, he is infallible, or, if he do wrong, no subject has any right to complain. This doctrine has been shot to death on so many different battle-; fields that it would seem utter folly now to resur-j rect it, even by the judgment of a court of last; resort.

The Declaration of Independence makes no exception in favor of governmental sovereignty. Indeed governmental sovereignty denying natural rights was the very basis of that Declaration. The Constitution of Ohio, Section 16, Bill of Rights, makes, no exception in favor of governmental sovereignty. It is as broad and comprehensive as language can make it, and right and remedy run to the individual who has been injured.

The injury, therefore, is the primary and paramount consideration, no matter by whom said injury is inflicted. When the injury is inflicted the right to sue ripens, the courts are open, and as to those political subdivisions of the state that have been for a long time recognized as capable of suing and being, sued there can be no reasonable question longer raised as to their liability for their wrongs committed against the individual’s rights as declared and defined by constitutional guaranties.

If the government of the United States and the government of the states and the various political subdivisions thereof are to be perpetuated by well-settled and well-directed public opinion, it will be because the unalienable personal rights of man are protected and promoted in accordance with our constitutional guaranties. It is our only escape from autocracy upon the one hand, and bolshevism, communism or the teachings of radical schools of socialism upon the other.

I complain, however, of the majority opinion chiefly upon the ground that it is predicated upon the claim that'the act of the municipal corporation pleaded as negligence was a “ministerial act.” I cannot quite regard the act of a fire department, a waterworks department, a police department, a health department, or any other governmental department, dealing with the very essential purpose of such department, which directly and vitally affects the life, limb and property of the people of a city, as being a mere “ministerial” act. It is as much a governmental function as the exercise of any other police power is a governmental function.

Government is a growth, necessarily so, and every new field of public duty it invades it so does in the exercise of a governmental function, and if in the exercise of such function it invades or violates personal rights granted and guaranteed by the constitution then it must in such case respond in damages for the right so violated.

After all, in the case at bar, there is nothing new in principle in holding municipalities liable for their negligence. For many years municipalities have been held liable for their failure to keep their streets and sidewalks open, safe for travel, and free from nuisance. Many cases may be cited in support of this doctrine, and it cannot be denied that the care of the streets is a governmental function, and surely it would not be claimed that the care of the streets, vital and important as it is to municipal life and activity, is a “ministerial” act. It is as much a governmental function as any other municipal act possibly could be.

Indeed the case at bar belongs to the same family of nuisances in the public streets as those in which municipalities have heretofore been held liable. What could be a greater nuisance than the careless and negligent running of a motor hose-truck at a great rate of speed in a public square, where hundreds of people are going about, where they have a lawful right to be, without warning and without opportunity to avoid the danger of collision with a motor truck? It may be the worst kind of a nuisance, the mos.t dangerous to life and limb, as it proved to be in the case at bar.

Reason and righteousness both demand that in such a case, where the proper facts are pleaded and proven, there should be a liability fixed against the municipality.

For many years, also, the municipality in the exercise of its function for the change of grade of streets has-recognized the right of abutting* property owners for damages for such change of grade. Yet the change of the grade was the exercise of a governmental function in the improvement and development of the city.

In the exercise of the right of eminent domain, in order to carry out some police power in the municipality, certain specific real property is appropriated by condemnation proceedings. Now if the constitution so permitted, the inherent powers of government would no doubt permit the taking of such property without compensation, but realizing the equities of the case in the property owner the constitution safeguards that right by providing that compensation shall be made to the owner of the property, when taken for public use, and the compensation is raised by taxation over the entire community, all contributing. In principle why should there be any difference when human life is taken in the exercise of some governmental function? As to the taking of the property there is no negligence, there is no wrong, but compensation nevertheless is made. As to the taking of life there is negligence, there is wrong, and why should satisfaction not be made for such wrong?

» Nineteen centuries and more ago the Man of "¡Galilee announced the doctrine that the Sabbath Was made for man and not man for the Sabbath. So Jefferson announced in the Declaration of Independence that government was made for man and not man for government, and it is the primary and paramount purpose of our American system of democracy to promote and protect these constitutional policies of the fathers as defined and guaranteed in our national and state Bill of Rights.

Jones, J.,

dissenting. The decision in this case not only overrules the established legal principles heretofore announced by this court, but is at variance with the principles settled by practically every court in this country. ' The law upon this subject was stated in the syllabus in Frederick, Admx., v. City of Columbus, 58 Ohio St., 538, as follows:

“A municipal corporation is not, in the absence of any statutory provision, liable in damages to one injured by the negligent acts of its fire department, or any of its members.”

The principle there announced, however, was not a new one, for it had already been established in this state in the reported cases of Western College v. City of Cleveland, 12 Ohio St., 375, and Wheeler v. City of Cincinnati, 19 Ohio St., 19. As late as 1909 this principle found approval in Bell v. City of Cincinnati, 80 Ohio St., 1. In the case of Frederick, Admx., v. Columbus, supra, Judge Minshall says at page 548: “The decision in this case is fully supported by the authorities, and the decisions in the other states of the union. There is, in fact, a remarkable unanimity on the subject.”

Upon this all the textbooks are in accord in holding that members of a fire department of a municipality are not agents for whose negligent conduct the city may be held liable. It is stated in 5 McQuillin on Municipal Corporations, Section 2432, that “This rule of non-liability has been followed in many decisions and is well settled. And the municipality is not liable either for acts of commission or acts of omission, unless liability is expressly imposed by statute,” etc.

Mr. Dillon in the fourth volume of his work on Municipal Corporations, Section 1660, states the same rule of nori-liability in the absence of express statute.

Mr. Tiedeman, also, in his’work on Municipal Corporations, Section 333a, states that a municipal corporation is not liable to a person who is run over by a hose carriage on its way to a fire.

Mr. Justice Gray, in the Admiralty case, Workman v. N. Y. City, 179 U. S., 550, 580, there states, as I am content to do, that “The decisions are so] uniform, and treat the point as so well settled, that it is enough to cite them, without stating them in detail.”

What warrant, therefore, is there for pursuing a course so much at variance with the established legal doctrines of this country, and which overrules the well-settled principles of law in this state? Is it a question of public policy? If so, that feature should be addressed to the legislative and not to the judicial department. Frequently the legislature has prescribed liability against counties and cities where but for the legislative action none would exist. If it should be desired that the doors of the public treasuries of these municipalities should be flung wide open at the behest of anyone who conceives that he has been injured by some officer or employe of the municipality while exercising public and governmental functions, the legislature can easily provide a remedy.

Counsel for plaintiff in error say in their brief, “The legislature has not caught up with this spirit of the times, and it is submitted that the courts are not entirely precluded from doing so notwithstanding this neglect of the legislatureThis is an appeal for judicial legislation entirely unwarranted by the constitution. Moreover, the policy of the people of this state'has been engrafted upon our constitution, which now provides that in suits against the sovereign (which in this state constitute the people, who, by their initiative, may establish constitutions and laws) legislative action must first be obtained. The latter clause of Section 16, Article I, provides: “Suits may be brought against the state, in such courts and in such manner as may be provided by law.” This provision did not promulgate any new principle in the jurisprudence of this state. Prior to its adoption in our Constitution of 1912 our courts had held that the state and its subdivisions were not suable without legislative consent, and it was under that principle that the Frederick case, supra, was decided. When, therefore, the people adopted the constitutional provision just quoted, they placed in the organic law of the state the judicial principle of exemption from liability, which theretofore obtained in favor of the sovereign and its various subdivisions when acting for it in a governmental capacity.

In the case of Raudabaugh v. State, 96 Ohio St., 513, all the present judges concurring, it was held that this clause was not self-executing, but that “statutory authority is required as a prerequisite to the bringing of suits against the state.” This then evinces the policy of all the people, that the state and its governmental subdivisions exercising governmental functions in its behalf should not be suable unless the legislature had expressly provided therefor. In this class of cases a city must act through its servants. It is required in the interest of public safety that the municipality provide- police and fire departments". The servants employed in these departments are not acting under the principle of respondeat superior and for the benefit of the city as a corporate entity, but are acting for the entire public. These servants are agents of the entire people, not only of a person who may be injured but of every citizen in the municipality. The employe, therefore, if exercising this governmental function, is the agent of the plaintiff as well as the rest of the community. The corporation in its corporate capacity receives no special benefit, the benefit accrues to the community. It must be conceded that the defendant in this instance, although acting through its fire employe, was exercising a governmental function. That principle is established not only in this state but elsewhere. Its act was not a ministerial one.

“There is a distinction between those powers of a municipal corporation which are governmental or political in their nature and those which are to be exercised for the management and improvement of property.- As to the first, the municipality represents the state, and its responsibility is governed by the same rules which apply to like delegation of power.” City of Cincinnati v. Cameron, 33 Ohio St., 336.

The statutory provisions that a municipal corporation may sue and be sued gives no sanction for imposing liability. It simply means that there may be a suit where there is liability. The statute creates no liability. The county, through its commissioners, may sue and be sued, but no liability accrues from the action of a mob except by legislative authority. Furthermore, that section has long been upon our statute books and it has not escaped the attention of this court, for it has been expressly held in the syllabus of Overholser v. National Home, 68 Ohio St., 236, that “The grant of power to sue and be sued at law and in equity applies to such matters only as are within the scope of the other corporate powers of the defendant, and it does not authorize such corporation to be sued for a tort.”

It was held in Finch v. Board of Education, 30 Ohio St., 37, that the board of education was not liable in its corporate capacity for damages for a tortious act, although the board of education by its charter was declared to be a body politic and corporate in law, with capacity to sue and be sued.

The majority opinion in the case of Workman v. N. Y. City, 179 U. S., 552, has been cited in support of the majority opinion. That was purely an admiralty case, in rem, and as stated by the court was governed entirely by the admiralty law. Had the question arisen under the local laws of any of the states, it is evident that the decision would have been otherwise, although even under the maritime law its application was denied by four dissenting judges, Justices Gray, Brewer, Shiras and Peck-ham. It was conceded in both opinions that the local law was otherwise, but the majority simply applied the admiralty law where it held the city for damages to the extent of the value of the vessel. About the time this case was decided- a federal case under the maritime law arose in the city of Cleveland in this state, and at a time when the local law of non-liability had been well setttled in the Frederick and other cases. This was in 1899. There the federal judge held in the Ohio cas.e that the rule of the maritime law was not based on the relation of master and servant, but rested upon the fact of ownership alone, and that the principle which held the city exempt from liability for the negligent acts of its firemen had no application to the case of a maritime injury, and that the city could be held responsible in a court of admiralty to the extent of the value of the tug owned by the city. Henderson v. City of Cleveland, 93 Fed. Rep., 844.

I have not cited the multitudinous cases reported in other jurisdictions supporting this opinion. These may be found in the citations attached to the various textbooks to which I have referred.

The municipalities of the state are merely agents of the sovereign when they exercise governmental functions, and where 'employes of a fire department, while on their way to a conflagration menacing the city, where the lives of citizens may be imperiled by the loss of a few seconds time, do commit an act of negligence, whether of omission or commission, such act should not cast upon the municipality, in its attempt to allay the conflagration or rescue the citizens, a civil liability, unless it is expresslv imposed upon the municipality by statute.  