#### Aldrich *v.*City of Youngstown.

*Municipal corporations*— N *egligence*— Liability — *Governmental functions*— Acts *of*policeman.

1. The creation and maintenance of a police department by a ■ municipality are ■ done in the exercise of its governmental functions. The performance of an act by an official of such department is not the performance of a ministerial act for Which a municipality becomes liable under the maxim, *respondeat superior.*

2. A municipal corporation is not, in the absence of a statutory provision, liable in damages to one injured for the negligent acts of its police department, or any of its members.

*(Fowler, Admx.,*v. *City of Cleveland,*100 Ohio St., 158, overruled; *Frederick, Admx.,*v. *City of Columbus,*58 Ohio St., 538, and *Wheeler*v. *City of Cincinnati,*19 Ohio St., 19, followed and approved.)

(No. 17327

Decided December 29, 1922.)

Error to the Court of Appeals of Mahoning county.

On May 30, 1918, while a passenger in an automobile driven by her husband on one of the city streets of Youngstown, plaintiff in error was struck by a police patrol wagon owned by the city, which was then being driven by a police officer answering to “a common box call.’’ The plaintiff in error was injured by the collision, sued the city for alleged negligence caused by the police officer while driving the patrol wagon, and obtained a verdict and judgment in the common pleas court against the city.

On the trial the defendant below objected to the introduction of any evidence, for the reason that the petition did not state a cause of action. At the close of all the evidence, the defendant for the same *343reason moved the court to arrest the evidence from the jury and direct a verdict in its favor. Trial resulted in a verdict for plaintiff. On error to the court of appeals, that court reversed the judgment of the common pleas court and remanded the cause for further proceedings. As cause of reversal the court of appeals held that the judgment of the court of common pleas was “against and contrary to the law of the case. ’ ’ From the latter judgment plaintiff in eri'or prosecutes error to this court.

*Messrs. Ewing £ Ewing*and *Mr. W. 8. Metcalfe,*for plaintiff in error.

*Mr. J. H. Leighninger,*city solicitor, and *Mr. Henry Church,*for defendant in error.

*Mr. Charles A. Leach,*city attorney, and *Mr. L. F. Laylin, amici curiae.*

Jones, J.

The trial court in sustaining the verdict relied upon the case of *Fowler, Admx.,*v. *City of Cleveland,*100 Ohio St., 158.

The city of Columbus, having a like case pending, its counsel submitted a brief herein as *amici curiae.*

The principal point of contention raised by counsel is whether or not the creation and maintenance of a police department by a municipality are the exercise of a governmental function. If this phase of the case is answered in the affirmative, it follows as a natural corollary that the negligence of a police officer, acting in the course of his official duties, does not impose liability upon the municipality. That a municipality is not liable for the acts of officials attached to its police department has been held by this state in two well-considered cases: *Western College*v. *344
      *City of Cleveland,*12 Ohio St., 375, and *Bell*v. *City of Cincinnati,*80 Ohio St., 1. In the former case this court held that the city of Cleveland was not responsible for the destruction of property by a riotous assemblage, nor for the neglect of officers in not preserving the peace and preventing such destruction. This was the basic case which led this court in many later decisions to disavow municipal liability for acts performed by its officers employed in the police or fire departments. All of the states1 are in practical accord in sustaining the principle that a municipality is not liable for the neglect of/ any of its officers in the execution of what are termed! political or governmental functions. And it may not be amiss to add that there is substantial unanimity of the courts everywhere in sustaining the principle that the establishment, maintenance and operation of the police departments of a municipality are done in the exercise of governmental powers. Without citing specific cases upon the subject which sustain the rule announced, we will content ourselves with citing some of the texts under which these authorities may be found:

“A municipal corporation can under ordinary conditions incur no liability by reason of the defaults of its police department. The prevention of crime is a purely governmental function, undertaken for the benefit of the public at large, and, if police officers are appointed and paid by the various municipalities, this is done merely as a matter of convenient administration. Their duties are ordinarily prescribed by law, and they are public officers and hot the servants or agents of the city or town in which they serve.” 19 Ruling Case Law, 1119, Section 399.

*345“When, by the action of the state, a municipal corporation is charged with the preservation of the peace, and empowered to appoint police boards and other agencies to that end, the corporation *pro tanto*is charged with governmental functions in the public interest and for public purposes, and in the exercise of its powers and duties in respect of the enactment and enforcement of police regulations it is .entitled to the same immunity as the sovereign granting the power unless such liability is expressly declared by the sovereign.” 28 Cyc., 1299.

“Agreeably to the principles just mentioned, po-1 *lice officers appointed by a city are not its agents or*j *servants*in such a sense as to render it responsible¡ for their unlawful or negligent acts in the discharge; of their public duties as policemen.” *4*Dillon on1 Municipal Corporations (5 ed.), Section 1656.

It has been held in many adjudicated cases that the agencies employed by the municipality for the preservation of peace and property, through control of departments created for that purpose, are merely the exercise of the delegated power of the state. The performance of an act by an official of such department, in pursuance of official duty, is not the performance of a ministerial act for which a municipality becomes liable under the maxim *respondeat superior.*The state itself has few or no police officers to enforce its laws, and, ordinarily, has no department within its own control to see that the property of its citizens is not devastated by fire. Therefore, both at common law and in some cases by statute, this political or governmental duty has been delegated to its political subdivisions and especially to municipalities. Not only the municipality *346but the entire state is interested in the maintenance of law and order and in the protection of property from fire and conflagration. Its interest therein extends not only to a single community, but over the entire commonwealth. While the employment of officers for the preservation of its peace and property may be in the hands of the municipality, the duties of those officers are in their nature state and governmental.

In the discussion of municipal liability for the acts of its officers, all of the cases fall within two. divisions, one holding non-liability, where the municipality has acted in the exercise of governmental or political functions, the other holding the municipality liable where the agencies employed by it are carrying out what are known as municipal, proprietary or private interests. Whenever it appears that the municipality is acting or has acted within its proprietary functions, the courts will hold it liable, and the only divergence found in the decisions of the various courts upon that aspect of the case is the determination whether a case falls within the exercise of a purely private or proprietary function wherein liability may be imposed.

This court held in *Raudebaugh*v. *State,*96 Ohio St., 513, that under the last clause of Section 16, Article I of the Ohio Constitution, “statutory authority is required as a prerequisite to the bringing of suits against the state.” But its subdivisions exercising governmental functions in its behalf should not be suable unless the legislature has expressly provided therefor. Supporting this principle by a large number of authorities cited in its behalf is the following from 2 Sherman & Redfield Law of Negligence (6 ed.), Section 253:

> *347“We confine ourselves here to the consideration of the extént of the liability to private actions of that large class of local corporations generally denominated municipal corporations, such as cities, towns, counties, school districts, etc., to which, for administrative purposes, the State delegates portions of its sovereign powers, to be .exercised within particular sections of its territory, for certain public purposes. To the extent that such local or special organizations possess and exercise govern-' mental powers, they are, as it were, departments of State; and as such, in the absence of any statute to the contrary, they have the privilege and immunity of the- State; they partake of the State’s prerogative of sovereignty, in that they are exempt from private prosecution for the consequences of their exercising or neglecting to exercise the governmental powers they possess. Their delegated duties are regarded as due to the public, not to individuals'; their officers are not agents of the.corporation, but of ‘the greater public,’ the State. * * * This is nothing more than an application and proper extension of the rule that the State is not liable for the misfeasance of its officers.”

Counsel for plaintiff in error insist, however, that this court, in *Fowler*v. *Cleveland, supra,*has announced a rule of liability that requires a reversal of the instant case. This court is of the opinion that there is no difference in principle between this and the *Fowler case,*and upon its reexamination has decided to overrule the latter. In doing so we are adhering to the~prmciple announced in *Wheeler*v. *Cincinnati,*19 Ohio St., 19, which has not. been overruled by this court, the syllabus whereof is as fob lows: “The power conferred by the statute, on cities *348of 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.” I have not extended this opinion or alluded to the reasoning stated in the dissenting opinion, because my views are more fully expressed in *Fowler*v. *Cleveland, supra,*beginning at page 179.

In the *Fowler case,*the only case cited for support was that of *Workman*v. *New York City,*179 U. S., 552. That was a New York *admiralty*case purely, and was governed entirely by the admiralty law. On page 184 of the *Fowler case*it was said: “Had the question arisen under the local laws of any of the states, it is evident the decision would have been otherwise. ” Since then the United States supreme court, in *Harris*v. *District of Columbia,*256 U. S., 650, has confined the rule announced in the *Workman case*solely to admiralty cases. Speaking for the court, Mr. Justice McReynolds said at page 654 of the opinion: *“Workman*v. *New York City,*179 U. S., 552, is not applicable. The proceeding being in admiralty, rights and liabilities of the parties depended upon the maritime code and not upon local laws of New York. Here, common-law principles apply.”

The local laws of New York then and now, as applied to the liability of a municipality for negligence of its police officials, are as follows': “Municipal corporations are not liable for the acts or omissions of their officials in relation to matters of purely gov*349emmental concern.” *Doty, Admx.,*v. *Village of Port Jervis,*23 Misc., 313, and *Wilcox*v. *City of Rochester,*190 N. Y., 137.

For the reasons stated, it is manifest that the trial court erred in submitting plaintiff’s case to the jury. The court of appeals should have entered judgment for the city. The judgment of the court of appeals will be affirmed, but, proceeding to render the judgment that court should have rendered, judgment is here awarded the defendant in error.

*Judgment affirmed and judgment for defendant in error.*

Marshall, C. J., Hough, Robinson, Matthias and Clark, JJ., concur.

Wanamaker, J.,

dissenting. I dissent from the majority opinion and judgment in this case upon the ground that the doctrine therein declared is contrary to sound public policy, contrary to the constitution, and contrary to the pronouncement of this court made July 19, 1919, in the case of *Fowler, Admx.,*v. *City of Cleveland,*100 Ohio St., 158. The following judges concurred in that judgment, Nichols, C. J., Matthias, Donahue, Wanamaker and Robinson.

Not content with the grounds upon which the majority opinion was placed in that case, though content with the judgment, I prepared a separate concurring opinion, which I adopt in this case. Judge Jones was the sole judge dissenting in the *Fowler case.*

*350Some seem to think that government antedated man, and that for some mysterious purpose man was especially created in order that government might have something to operate upon, something upon which to exercise its so-called “functions.”

I always understood the contrary to he true. Possibly, if we shall look to some of the old landmarks of the law, as laid down by the American fathers, we may be able to correct some of the illusions concerning some of the powers and purposes of government.

American independence was born in 1776, with the declaration:

> “We hold these truths to be self-evident, that all men # * * 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,” etc.

The fathers obviously favored the idea that the primary purpose of government was “to secure,” to protect, to defend these rights.

When the Ohio fathers met in their constitutional convention to deal with the purposes of the state government, they declared in their preamble: “We, the people of the State of Ohio, grateful to Almighty God for our freedom, *to secure*its blessings and promote our common welfare, do establish this constitution.”

And, first of all, they wrote a bill of rights:

Article I, Section 1. “All men * * * have certain inalienable rights, among which are those of enjoying and defending life and liberty * * * and seeking and obtaining happiness and *safety.”*

*351■Section 2. “Government is instituted for their equal protection and benefit.”

In that same bill of rights the fathers declared in Section 16:

> “All courts shall be open *and every person,*for; *an inf wry done him in his land, goods, person,*orj *reputation,*shall have remedy by due course of law, and shall have justice administéred without denial j or delay.”

I stand firmly and finally upon these constitutional declarations of the sovereign people. I emphatically deny the right of any of the servants of those sovereign people to in any wise change or curtail those rights, either by legislative declaration or judicial decree.

Academically, we all concede that constitutional law is paramount to any legislative law or judicial law. Actually, we know the exact contrary to be obvious and frequent in the books of the law and decisions of our courts. No more notable instance of this subordination of constitutional law to judicial law can be found anywhere in the Ohio courts than in the judgment and opinion of this case.

The constitutional language is “every person.” Surely that applies to Mary Aldrich in this case. The language of the constitution is “an injury,” that is, any injury of a substantial nature to one’s lands, goods, person or reputation; in this case to the person. Then follows the mandatory language of the constitution, “shall have remedy by due course of law” and “shall have justice administered without denial or delay.”

Does the constitution make or. suggest any exceptions according to who inflicts the injury, who causes the injury?

*352Government, the Guardian oe the People in Their Unalienable Eights.

If these landmarks of the law laid down by the fathers who founded the American states and the American nation are to prevail in the administration of justice, then all governments, including certainly municipal governments, can be gauged in their relations to the people as guardians of the people, and the people as wards of that guardian so far as their unalienable rights to life, liberty, and the pursuit of happiness are concerned and secured.

True, the sovereign people may themselves surrender a part of those rights, may limit and qualify them in their organic law, but, until they do so, those rights remain intact, and it is the primary duty of the government to' respect and redress those rights by whomsoever violated.

Note again the language in Section 16 of the bill of rights, adopted September 3, 1912:

> “All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law.”

This self-evident, . self-executing declaration of right, remedy and justice is in no wise qualified by the phrase “laws may be passed” or “when provided by law.” This constitutional declaration was in no wise made dependent, upon any legislative law, save as to course of procedure. No procedure, however, could deny or curtail the right or remedy.

*353It is an astounding proposition to say that if gov-f eminent he the guardian of the unalienable rights'; of man, including of course human life, that sames government or political subdivision thereof mays wrongfully take the life of any of its citizens with! immunity, and the citizen’s representatives or sur-f vivors be utterly without any remedy.

Surely the fathers who wrote that declaration in the bill of rights never so contemplated. The very fact that the constitutional convention of 1912 reaffirmed Section 16 of the bill of rights and added to it this language, “suits may be brought against the state, in such courts and in such manner, as may be provided by law,” reaffirmation followed by amendment, clearly and convincingly extends the liability to even the state, leaving it for the legislature to prescribe merely as to the court and the manner of procedure.

The old idea of the irresponsibility of the sovereign for wrongful acts to the citizens was based upou the old-time monarchical fallacy that “the king can do no wrong.” That doctrine has found no favor in America since our Declaration of Independence, and the new amendment to the constitution, in view of a former decision of this court, plainly intended that the state should be no longer immune from its full measure of liability for any wrong done to any of its citizens.

For years and years such liability had been recognized as against counties and municipalities, and the very fact that a municipal corporation is once organized and proceeds to function as such not only gives it the right to sue in defense of its corporate *354rights, hut also imposes upon it a corollary liability to be sued for its wrongs.

Now, the second paragraph of the syllabus plainly admits that a statute expressly providing for municipal liability would be sufficient to create that municipal liability. It is a novel proposition, to say the least, that when a liability is declared in the constitution there is need, for the general assembly to further declare that same liability in a statute. It is tantamount to saying that before a right granted by the constitution shall have potential force it must be vitalized by a redeclaration of that right in a statute. The bill of rights might have so provided. It is sufficient to say that it did not so provide.

In this day, when it is most obvious that the field of private corporations is being daily decreased, and the field of public corporations correspondingly increased in the line of ownership and operation of public utilities, what is to be the outcome of human life so recklessly and ruthlessly taken by the officers, agents and servants of the public corporations, without right or remedy upon the part of the injured parties or their deceased representatives'?

This case expressly and necessarily reverses the case of *Fowler, Admx.,*v. *City of Cleveland,*100 Ohio St., 158, in which it was held in the first paragraph of the syllabus:

> “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.”

It is refreshing to return to some of these old constitutional guaranties, and to realize that this court has at times recognized them. That case was pro*355claimed to be a substantial step forward in the conservation of human rights, and yet it did nothing more or less than attempt to realize what had been a long time written in our organic law.

That case required the overruling of the *Frederick case,*in 58 Ohio St., page 538. By the decision in this *Aldrich case,*the *Frederick case*is now reinstated and the *Fowler case*is reversed, notwithstanding the constitutional guarantee and grant.

In this case, Judge Jones writes the opinion of the court in support of the judgment, setting forth the “reasons therefor,” as required by the constitution. I have carefully examined the majority opinion and to my entire amazement I utterly fail to find a single, solitary reference in that opinion to the Ohio constitution or its bill of rights. It brings back with tremendous force the old proposition — the sovereign people may make what constitution they please, but give me the supreme court, that construes and applies that constitution, and I care not who makes the constitution or what it contains.

In the various cases cited in support of the judgment not a single one refers to any constitutional grant or guarantee as to human rights; nor attempts in any wise to review, reverse or distinguish them. These decisions are all mere dietums. They are in substance “thus saith the court,” not “thus saith the constitution.”

It may be well to here return to the oath of the supreme judge and every other judge of Ohio. It reads:

> *‘‘*Sec. 3. The oath of office of each judge of a court of record shall be to support the constitution of the *356United States *and the constitution of this state, to administer justice*without respect to persons, and faithfully and impartially to discharge and perform all the duties incumbent on him as such judge, *according to the best of his ability and understanding.”*

I have italicized the most significant portions of this oath relating to the present case. I find in this oath an obligation on the judge to support “the constitution of this state.” I find no requirement to support “the decisions of this court.”

I find further in this oath that the judge is to act the discharge of his duties “according to the best of *his*ability and understanding, ” and not merely according to the ability and understanding of some other court, which merely announces a declaration and dictum.

The soundness of a decision must be judged by the degree in which it is rooted in reason and righteousness. A judgment that does not contribute to j'usticels fatally at fault. The lowering of the safeguards to human life, the limitations on recovery for wrongful death, by whomsoever wrongfully com- ■ mitted, are all in violation of the plain and peremptory provisions of our constitution, our bill of rights, and contrary t.o_ the spirit of our times.

For further reasons touching the grounds of this dissent I refer to my concurring opinion in the *Fowler case.*