Where a city or town is exercising the ju dicial, discretionary, or legislative authority conferred by its charter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negli gence of its officers, though acting under color of office, unless some statute (express ly or by necessary implication) subjects the corporation to pecuniary responsibility for such negligence ; Dill. Mun. Corp. § 965 ; but where such corporations are not in the exer cise of their purely governmental functions, but are exercising, as corporations, private franchises, powers, and privileges which be long to them for their ordinary corporate benefit, or dealing with property held by them for their corporate advantage, gain, or emol ument, though enuring ultimately to the benefit of the general public, then they be come liable for the negligent exercise of such powers precisely as though they were indi viduals ; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332 ; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302 ; Providence v. Clapp, 17 How. (U. S.) 161, 15 L. Ed. 72; Dill. Mun. Corp. § 966.
The obligation and duty of a municipal corporation in the construction of public work is only the exercise of reasonable care ; it does not insure against damage ; Jenney v. Brooklyn, 120 N. Y. 164, 24 N. E. 274. The inquiry must be whether the department or officer whose action or non-action is com plained of is part of the machinery for carry ing on the municipal government, and wheth er it was then engaged in discharging a duty resting upon it ; Pettengill v. Yonkers, 116 N. Y. 558, 22 N. E. 1095, 15 Am. St. Rep. 442. To constitute negligence in such actions, there must be a duty imperfectly discharged; Carpenter v. Cohoes, 81 N. Y. 21, 37 Am. Rep. 468 ; S.C. B. N. S. 568 ; and if the duty is owed to the public, there is no action by an individual to whom the duty was not specially owed ; Griffin v. Sanbornton, 44 N. H. 246 ; Tomlinson v. Derby, 43 Conn. 562. As illustrating the effect of their two-fold character, municipal corporations have been held liable for injuries resulting from negli gence in the management of a public build ing rented out for profit; Oliver v. Worces ter, 102 Mass. 499, 3 Am. Rep. 485; other wise, if let gratuitously; Larrabee v. Pea body, 128 Mass. 561. So they are liable for torts of their agents amounting to the negli gent breach of municipal duty ; Pittsburgh v. Grier, 22 Pa. 54, 60 Am. Dec. 65. Upon this theory rests the exception to the general rule of exemption from liability for negli gence in performance of a public duty, rec ognized in many states, as to defective high ways; Smoot v. Wetumpka, 24 Ala. 112; see Dundas v. Lansing, 75 Mich. 499, 42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457; Goshen v. England, 119 Ind. 368, 21 N. E. 977, 5 L. R. A. 253 ; Thompson v. Quincy, 83 Mich. 173, 47 N. W. 114, 10 L. R. A. 734 ; as is also in many jurisdictions the liability for defective drains and sewers; Chive v. Eureka, 78 Cal. 588, 21 Pac. 364, 4 L. R. A. 325, 12 Am. St. Rep. 113; Chapman v. Roch ester, 110 N. Y. 273, 18 N. E. 88, 1 L. R. A. 296, 6 Am. St. Rep. 366; Bates v. Westbor ough, 151 Mass. 174, 23 N. E. 1070, 7 L. R. A. 156 (contra, that there is no liability for typhoid fever caused by a defective sewer, see Metz v. Asheville, 150 N. C. 748, 64 S. E.
881, 22 L. R. A. [N. S.] 940); but it was held that there was no liability for damage by fire resulting from failure to keep fire plugs, etc., in order; Wright v. Augusta, 78 Ga. 241, 6 Am. St. Rep. 256; Lenzen v. New Braunfels, 13 Tex. Civ. App. 335, 35 S. W. 341 ; or from not preventing the erection of a wooden building within the fire limits; Hines v. Charlotte, 72 Mich. 278, 40 N. W. 333, 1 L. R. A. 844.
There is no liability for omission to ex ercise discretionary powers; Wilcox v. Chi cago, 107 Ill. 334, 47 Am. Rep. 434; Welsh v. Rutland, 56 Vt. 228, 48 Am. Rep. 762 ; there must be a corporate duty imposed; Smith v. Rochester, 76 N. Y. 506; Cummins v. Seymour, 79 Ind. 491, 41 Am. Rep. 618; L. R. 2 Q. B. 534 ; as, for example, a city is not liable for failure of its police to pre vent crime which is a public duty, as dis tinguished from a strictly corporate duty ; Wilmington v. Vandegrift, 1 Marvel (Del.) 5, 29 Atl. 1047, 25 L. R. A. 538, 65 Am. St. Rep. 256. But if the corporation receives a benefit, it may be liable; Hand v. Brookline, 126 Mass. 324.
The municipality has been held not liable for injuries resulting from negligence of a physician in charge of a pest-house; Brown v. Vinalhaven, 65 Me. 402, 20 Am. Rep. 709 ; see Hines v. Charlotte, 72 Mich. 278, 40 N. W. 333, 1 L. R. A. 844; or for tortious acts of agents in their nature unlawful; Brown v. Cape Girardeau, 90 Mo. 377, 2 S. W. 302, 59 Am. Rep. 28; Seele v. Deering, 79 Me. 343, 10 Atl. 45, 1 Am. St. Rep. 314 ; as a constable making an unlawful sale; Everson v. Syracuse, 100 N. Y. 577, 3 N. E. 784; for negligence of an officer in whose selection there was no negligence; Dargan v. Mobile, 31 Ala. 469, 70 Am. Dec. 505 ; or of officers selected under a statute independently of mu nicipal control; Symonds v. Board, 71 Ill. 357; Richmond v. Long, 17 Gratt. (Va.) 382, 94 Am. Dec. 461; see Hines v. Charlotte, 72 Mich. 278, 40 N. W. 333, 1 L. R. A. 844 ; for negligence of police; Boyd v. Insur ance Patrol, 113 Pa. 269, 6 Atl. 536; un less there is statutory liability, express or implied; Carrington v. St. Louis, 89 Mo. 208, 1 S. W. 240, 58 Am. Rep. 108 ; or of firemen; Grube v. St. Paul, 34 Minn. 402, 26 N. W. 228; or of a civil engineer in establishing a grade for the benefit of an individual for whom he was bound to do it on payment of a tee ; Waller v. Dubuque, 69 Ia. 541, 29 N. W. 456; for damages resulting from the fir ing of a cannon under a license from the mayor authorized by ordinance; Lincoln v. Boston, 148 Mass. 578, 20 N. E. 329, 3 L. R. A. 257, 12 Am. St. Rep. 601; for the publica tion of defamatory matter contained in an official report of an investigating committee duly selected ; Howland v. Maynard, 159 Mass. 434, 34 N. E. 515, 21 L. R. A. 500, 38 Am. St. Rep. 445; for the wrongful act of its officers in closing an exhibition with intent to injure the owner thereof ; Kansas City v. Lemen, 57 Fed. 905, 6 C. C. A. 627; for fail ure of its officers to provide by special tax a fund to pay street grade warrants; Mc Ewan v. Spokane, 16 Wash. 212, 47 Pac. 433. See 3 L. R. 257, note ; MANDAMUS ; QUASI CORPORATIONS.