employee of the Commissioners of Public Charity. The evidence showed that the accident was caused by the negligence of the driver of the ambulance who was at the time engaged in the performance of his duties. The city denied liability, since the acts were all done in the execution of governmental functions.

Mr. Justice FOLGER held the city not liable, he said in part: There are two kinds of duties which are imposed upon a municipal corporation; one is that kind which arises from a grant of a special power, in the exercise of which the municipality is a legal individual;" the other is of that kind which arises or is implied from the use of political rights under the general law, in the exercise of which it is sovereign. The former power is private and is used for private purposes; the latter is public and is used for public services. The former is not held by the municipality as one of the political divisions of the state. The latter is. In the exercise of the former power and under the duty to the public which the acceptance and the use of the power involved, a municipality is like a private corporation, and is liable for a failure to use its power well, or for any injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the state and is conferred not for the immediate benefit of the municipality but as a means to the exercise of the sovereign power, the corporation is not liable for non-user nor for mis-user toward the public.

At all events the law upon the governmental side is plain. No matter how apparent the negligence of the public officer may be in the course of his duties, the government is in no way responsible. That is true,

although in a general way it may be said that there is no objection if a municipal corporation is impleaded. Liable a municipal corporation may be, but it cannot be sued for negligence in the course of the administration of its governmental functions. Governments of whatever degree can protect themselves by the principle that no tort done by a public officer can by possibility have been authorized by a valid law.

The rule of this section, indeed, goes to the furthest extent. So that if a public officer commits a positive tort in the course of executing the law, the governmental ing peaceably upon a sidewalk in the city of Lowell 1 Allen, 172 (1861). While the plaintiff was standing peaceably upon a sidewalk in the City of Lowell two police officers ordered him off; and upon his refusal to go they assaulted, arrested and imprisoned him, claiming that by so doing they were only performing their official duty. The court held that this was a false arrest, and assault and battery. The plaintiff now brings the present action against the city to recover his damages for this imprisonment.

Mr. Justice BIGELOW disposed of the case in this way: Police officers can in no sense be regarded as agents or servants of the city. Their duties are of a public nature. Their appointment devolved on cities and towns by the legislature as a convenient method of exercising the function of government; but this does not render them liable for their unlawful or negligent acts. For the mode in which they exercise their powers and duties the city or town cannot be held liable. The enforcement of the laws and other similar powers and duties

with which police officers are intrusted are derived from the law.59

$77. Relation.

The reason in all this is that public policy which must shape the law in every system of government. That public policy it is which relieves the state of responsibility for acts done in the course of administration without authority. A leading case in this rule is Dunlop v. Munroe, 7 Cranch, 242 (1812). This was a suit against the Postmaster, the superior officer, for the loss of a letter by the neglect of a carrier, the inferior officer. In the declaration the person who had lost the letter charged that it was lost by the negligence of the Postmaster.

Upon that point Mr. Justice JOHNSON said: The third exception is intended to raise the question how far the Postmaster is liable for the neglect of his assistants; but connected with the pleading it presents another and very different question, to-wit, whether when the suit is taken upon the neglect of the Postmaster himself, it is competent to give in evidence the

59 LIABILITY.—O'Brien v. Reg., 4 Can. Sup. Ct. 529; Gibbons v. United States, 8 Wall. 269; Whiteside v. United States, 93 U. S. 247; Workman v. New York, 179 U. S. 552; State v. Hill, 54 Ala. 67; Perry v. Hyde, 10 Conn. 329; Love v. Atlanta, 95 Ga. 129; Marshall Co. Sup'rs v. Cook, 38 Ill. 44; Summers v. Daviess Co. Com'rs, 103 Ind. 262; Ogg v. Lansing, 35 Ia. 495; Brown v. Vinalhaven, 65 Me. 402; Boehm v. Baltimore, 61 Md. 259; Buttrick v. Lowell, 1 Allen, 172; Miller v. Minneapolis, 75 Minn. 131; Hale v. Woods, 10 N. H. 470; Wild v. Paterson, 47 N. J. L. 406; Maxmilian v. New York, 62 N. Y. 169; Wheeler v. Cincinnati, 19 Oh. St. 19; State v. Bevers, 86 N. C. 588; McDade v. Chester, 117 Pa. St. 414; Wixon v. Newport, 13 R.

I. 454; Horton v. Nashville, 4 Lea, 47; Mulcairns v. Janesville, 67 Wis. 24.

neglect of the assistants acting under him. Now, the distinction between the relation of the Postmaster to his sworn assistants acting under him and between master and servant generally, has long been settled; and although the latter relation might sanction the admission of such evidence, we are unanimously of opinion, that, if it is intended to charge a Postmaster for the negligence of his assistants, the pleadings must be made up according to the case; and his liability then, will only result from his own neglect in not properly superintending the discharge of the duties of his office by them.

A late case to the same effect is Robertson v. Sichel, 127 U. S. 507 (1888). The object of this suit was to recover damages for the loss of the contents of a trunk. The trunk was detained by a customs officer for appraisal. During the period of custody it was kept on the pier instead of being sent to the public store; so that when the pier was burned by an accidental fire the trunk was destroyed. The owner sued the Collector of the Port of New York for this negligence. At the close of the case for the plaintiff, the defendant asked the court to direct a verdict for him upon the ground that the only negligence shown was that of subordinate officers, which ought not to be imputed to the superior officers.

Mr. Justice BLATCHFORD reviewed the authorities: The defendant was not liable for the wrong, if any, committed by his subordinates. There is nothing in the evidence to connect the defendant personally with such wrong. No evidence was given that the officers in question were not competent or were not properly selected for their respective positions. A public offi

cer is not responsible for the misfeasances or positive wrongs or for the nonfeasances or omissions of duty of the sub-agents or other officers properly employed by or under him in the discharge of his official duty. Competent persons could not be found to fill positions of the kind if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person.

60

§ 78. The officer as agent.

It must be obvious now that office is not quite like agency. The private agent may subject his principal to liability in contract or in tort by any act which may be said to be within the scope of his employment; while the public agent cannot submit his principal to liability in contract or in tort by any act which may not be said to be in law within the scope of his authority. That is, while in private agency all turns upon the inference of the scope of the employment, in public agency all turns upon the construction of the authority.

The principal distinction is the same in this topic as in every question of the law governing administration. This distinction between discretionary powers and ministerial duties it must be obvious is the principal distinction in this problem of the application of the law.

60 RELATION.-Raleigh v. Goschen [1898] 1 Ch. 73; Dunlop v. Munroe, 7 Cranch 242; Robertson v. Sichel, 127 U. S. 507; Ely v. Parsons, 55 Conn. 100; Huey v. Richardson, 2 Harr. 206; Scott Co. v. Fluke, 34 Ia. 317; Anne Arundel Co. Com'rs v. Duvall, 54 Md. 350; McKenna v. Kimball, 145 Mass. 555; Donovan v. McAlpin, 85 N. Y. 185; Sawyer v. Corse, 17 Grat. 230; Murphy v. Holbrook, 20 Oh. St. 137; Tracy v. Cloyd, 10 W. Va. 19.