concern

but which nevertheless rights just as well established and important as are those involved in this ordinance. Dolfield v. Western Maryland R. Co. 107 Md. 584, 69 Atl. 582; New York Min. Co. v. Midland Min. Co. 99 Md. 506, 58 Atl. 217; Hopkins v. Philadelphia, W. & B. R. Co. 94 Md. 263, 51 Atl. 404; Moores v. Bel-Air Water & Light Co. 79 Md. 391, 29 Atl. 1033; Francis v. Weaver, 76 Md. 457, 25 Atl. 413; Greenland v. Harford County, 68 Md. 59, 11 Atl. 581; Hendrick v. State, 115 Md. 552, 81 Atl. 18; Rayner v. State, 52 Md.

368; Judefind v. State, 78 Md. 510, 22 L.R.A. 721, 28 Atl. 405; Green v. State, 113 Md. 451, 77 Atl. 677.

Without further prolonging this opinion, it is sufficient to say that, for the reasons heretofore given, we think Ordinance No. 522 of the mayor and city council of Baltimore is valid, and we will accordingly affirm the action of the learned court below in overruling the petitioner's demurrer to the defendant's answer, and rendering a judgment for the defendant.

Judgment affirmed, with costs.
Digges and Parke, JJ., dissent.

Introductory.

The present annotation is supplemental to that in 43 A.L.R. 834, where the earlier cases may be found. Delegation to private individual.

(Supplementing annotation in 43 A.L.R. 834.)

Zoning ordinance, which makes no division of city into districts, but delegates to the owners of four fifths of the street frontage on any block the power to determine the structures to be erected or altered in that block, is void, as unlawful delegation of governmental power. Glens Falls v. Standard Oil Co. (1926) 127 Misc. 104, 215 N. Y. Supp. 354. See also Utica v. Hanna (1922) 202 App. Div. 610, 195 N. Y. Supp. 225, cited therein.

Delegation to public official.

(Supplementing annotation in 43 A.L.R. 836.)

Ordinance authorizing zoning commissioner to prohibit the erection or use of buildings or structures, if proposed buildings or use “would menace public security, health, or morals," is not an unconstitutional delegation of power, especially in view of the fact that the ordinance does not vest an unlimited discretion in the zoning commissioner, but requires him to secure information about, and give consideration to, various matters (as to

which see the opinion), and in view of the further fact that in determining what buildings, or the use thereof, would menace the public security, health, or morals, he would be bound by numerous decisions of the highest court of the state, with right of appeal to the injured party, should these limitations be disregarded, to the board of zoning appeals, and thence to the city court. TIGHE V. OSBORNE (reported herewith) ante, 80.

While zoning commissioner can disregard limitations upon his powers, it is not to be presumed that he will do so, nor is such a possibility a proper ground for declaring the ordinance invalid. Ibid.

The reported case (TIGHE v. OsBORNE) it is to be noted, was between the same parties as Tighe v. Osborne (1925) 148 Md. —, 131 Atl. 801, reported in 43 A.L.R. 819 (to which the original annotation was appended), the only difference to be found being in the two ordinances involved. The earlier case involved an ordinance of similar import to that involved in the later case, except that therein the zoning commissioner was given the additional power to prohibit the erection of any building (other than a residence) the use or location of which, in his judgment, "would, in any way,

menace the public welfare;" the effect of the decision in that case being merely to hold that the city could not delegate to anyone the power to decide what was detrimental to the "public welfare." In the case now under consideration there was no such delegation, the authority of the zoning commissioner being limited to prohibiting structures, or uses of them, which would menace the public security, health, or morals: the words "in his judgment," with respect to his power, being also omitted.

Ordinance providing that, before proceeding with the erection or alteration of any building, etc., a permit shall be obtained from the inspector of buildings, is not open to the charge that it is a grant of arbitrary power. Andrew v. Hendryx Co. v. New Haven (1926) 104 Conn. 632, 134 Atl. 77.

Ordinance providing that no permit shall be granted for the erection of a wooden building within fire limits nearer than 110 feet to the outer edge of street pavement is not invalid as conferring arbitrary power or affording opportunity to discriminate between those similarly situated, since it prescribes a standard by which the discretion of the town council is to be controlled. Lovell V. Mt. Vernon (1926) — Ky. —, 284 S. W. 1025.

Upon the principle that an ordinance which leaves to an executive officer the definition of the thing to which such ordinance applies, such definition not being commonly known, is an unwarranted and void delegation of legislative power to an executive officer, it has been held that an ordinance requiring a permit from commissioner of buildings to convert apartment buildings (as defined by the ordinance) into buildings of another

class, including "rooming houses," is invalid, as an unwarranted delegation of legislative authority to an executive officer, because not defining the term "rooming house," that term not being one of generally accepted definition. Chicago v. Matthies (1926) 320 III. 352, 151 N. E. 248. (Generally, as to validity of statute, or ordinance vesting discretion in a public official without prescribing a rule of action, see annotation in 12 A.L.R. 1435.)

In several cases, ordinances conferring powers upon public bodies or officials have been declared invalid, because of the arbitrary power invested under the particular ordinance; these, however, do not discuss the question under consideration, but proceed rather upon the theory that the municipality is itself without arbitrary power in the matter. Generally, such cases are beyond the scope of the present annotation. See, for example, the following recent cases: Ingham v. Brooks (1920) 95 Conn. 317, 111 Atl. 209; Julian v. Golden Rule Oil Co. (1923) 112 Kan. 671, 212 Pac. 884 (city commissioners given arbitrary power with respect to permits); Com. v. House (1917) 177 Ky. 829, 198 S. W. 218 (board of council given arbitrary power to discriminate between citizens); Bloomfield v. Bayne (1924) 206 Ky. 68, 266 S. W. 885 (town board given arbitrary power to discriminate between citizens); Slaughter v. Post (1926) 214 Ky. 175, 282 S. W. 1091 (mayor and general council given arbitrary power); South Orange v. Heller (1921) 92 N. J. Eq. 505, 113 Atl. 677 (board of trustees given too great discretionary powers); Keavey v. Randall (1923) — N. J. L. 379 (town council given power to refuse permits).

122 Atl. arbitrary L. S. E.

son.

2. In the maintenance of public streets a municipal corporation is engaged in a corporate rather than a governmental function.

[See 13 R. C. L. 312; 4 R. C. L. Supp. 808.]

Highways, § 96 liability of municipality for defects.

3. A municipal corporation is liable

The complaint and plea No. 3 mentioned in the opinion are as follows:

"The plaintiff, Dessa Hillman, suing as administratrix of the estate of W. A. Hillman, deceased, claims of the defendant, the city of Anniston, a municipal corporation, the sum of twenty-five thousand and 00/100 ($25,000) dollars as damages for injury done to, and wrong suffered by, plaintiff's intestate proximately caused by the defendant corporation, its agent, officer, or employee, for that, heretofore, on, to wit, the 2d day of July, 1925, the defendant was engaged, by its agents, officers, and employees, in making repairs or improvements on the streets of the city, loading, digging, and hauling slag, earth, and other material for such repairs, and then and there, at a place in the southern part of the city near the plant of the Emory Foundry Company, said defendant had, as its employee, in charge of said work, as superintendent or boss, one R. M. McArdle, who was then and there in charge of plaintiff's intestate and others engaged in such work for the city, and at such time and place the said R. M. McArdle, while acting in

the line of his duty as an employee of the defendant, committed an assault and battery on the person of plaintiff's intestate by striking him with a pick handle or other wooden instrument, and brutually kicking and abusing plaintiff's intestate, by reason of which injuries, and as a proximate consequence thereof, plaintiff's intestate died within the space of about one hour thereafter, and plaintiff avers and charges that the injuries and death of her said intestate were proximately caused by the wrongful and wanton injury committed by the said defendant, its servant, agent, or employee, causing the death of plaintiff's intestate, and plaintiff further avers that on, to wit, the 30th day of July, 1925, plaintiff filed with the clerk of the city of Anniston, as such administratrix, a sworn statement, stating substantially the manner in which the injury complained of was received, and the day and time and the place where the accident occurred out of which the damages are claimed; hence this suit."

Plea No. 3: "(3) That, at the time of the alleged injury to plaintiff's intestate, such intestate was engaged in serving a sentence for

violation of an ordinance of the city of Anniston, and was in charge of its convict guard, R. M. MeArdle; that defendant, by and through said McArdle, was engaged at the time of said alleged injury in the exercise of a governmental function, to wit, in working convicts repairing a street or public highway in said city, and is therefore not liable for said alleged injury."

Messrs. Rutherford Lapsley and Longshore & Longshore, for appellant:

The city is civilly liable for misfeasance of its officers and employees in and about the performance of acts relating to the management of corporate or private concerns of the municipality, from which it derives special or immediate profit or advantage as a corporation.

28 Cyc. 1260, 1263; New Orleans v. Kerr, 50 La. Ann. 413, 69 Am. St. Rep. 442, 23 So. 384; Goddard v. Harpswell, 84 Me. 499, 30 Am. St. Rep. 373, 24 Atl. 958.

The repairing of a public street is a corporate rather than a public duty; and the municipality's officers and agents so engaged are exercising a ministerial and corporate act, rather than a governmental function.

Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Sheffield v. Harris, 101 Ala. 564, 14 So. 357.

Officers of a municipality, who, in other respects and at other times, are charged with the exercise of governmental powers, are, when acting for the municipality in its corporate or private concerns, its mere ministerial agents, for whose negligent or wrongful acts the municipality is civilly liable, in its corporate capacity, rather than as an arm of the state.

Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487; Sheffield v. Harris, supra.

A municipality has immunity from civil action only when the wrong is committed by its officer or agent in the performance of a duty imposed on the city as an instrumentality of the sovereign power, acting for the benefit of the public, and has not been extended to cover an assault on workmen while engaged in repairing city streets.

Goddard v. Harpswell, 84 Me. 499, 30 Am. St. Rep. 373, 24 Atl. 958; 25 C. J. 1157; Aldrich v. Youngstown, 106 Ohio St. 342, 27 A.L.R. 1497, 140 N. E.

164; La Clef v. Concordia, 41 Kan. 323, 13 Am. St. Rep. 285, 21 Pac. 272. Mr. J. F. Matthews for appellee.

Bouldin, J., delivered the opinion of the court:

The case is here upon the ruling sustaining plea No. 3 as against apt grounds of demurrer. The complaint and plea No. 3 appear in the report of the case. The one legal question presented on this appeal is: Is a municipal corporation iiable under the homicide act for the death of a city convict by wrongful act of the officer or agent guarding and superintending the work of the prisoner in the repair and maintenance of the streets of the city?

Municipal corporations

corporate

functions

of streets.

ability of municipality

Highways—

for defects.

As regards the public making use of the streets of a city, it has been the long-declared law of this state that in the maintenance of public maintenance streets and sidewalks the municipality is engaged in a corporate rather than a purely governmental function. As a result the municipality is liable for injuries resulting from defects in the streets due to negligence of its officers and agents. This duty to the public to maintain the streets in a safe condition is not suspended at a time and place where the city, by its own force of labor and superintendence, is engaged in street work, and hence it is liable for injuries to persons in the proper use of the street from negligence of the street force while so engaged. Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487; Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; Birmingham v. Carle, 191 Ala. 539, L.R.A. 1915F, 797, 68 So. 22; Bloom v. Cullman, 197 Ala. 490, 73 So. 85; Birmingham v. Muller, 197 Ala. 554, 73 So. 30; Selma v. Perkins, 68 Ala. 148; Albrittin v. Huntsville, 60 Ala. 486, 31 Am. Rep. 46; Smoot v. Wetumpka, 24 Ala. 112. See also 6 McQuillin, Mun. Corp. § 2634.

Following up this doctrine that

the officers and agents engaged in street work represent the municipality in its corporate or business character, it was held in Sheffield v. Harris, 101 Ala. 564, 14 So. 357, that the city is liable under the Employers' Liability Act for the death of an employee while working in a pit preparing gravel for use upon the streets, and occurring under circumstances covered by the act.

The case of Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487, recognizes the rule that, if a police officer has committed to him concurrent duties relating to the maintenance of streets, in the performance of these duties he acts in a ministerial way, as agent for the city in its corporate capacity, and the municipality is liable for injuries resulting proximately from his failure of duty.

In general, the liability of a municipal corporation for the torts of its officers or agents, whether from malfeasance or misfeasance, in the construction or maintenance of streets, is the same as in the construction or operation of waterworks, light plants, and other public utilities. Athens v. Miller, 190 Ala. 82, 66 So. 702; Posey v. North Birmingham, 154 Ala. 511, 15 L.R.A. (N.S.) 711, 45 So. 663; Darby v. Union Springs, 173 Ala. 709, 55 So. 889.

Municipal corporationsHiability for tort of police officers.

On the other hand, under the general principle of immunity of government agencies from liability for the torts of its officers, there is no liability for the negligence or wrongful act of police officers in arresting or guarding prisoners. Daragan v. Mobile, 31 Ala. 469, 70 Am. Dec. 505. Nor for failure to properly police the town in the protection of the citizen from violence. Campbell v. Montgomery, 53 Ala. 527, 25 Am. Rep. 656. Nor for failure to abate a nuisance. Bieker v. Cullman, 178 Ala. 662, 59 So. 625. Nor in the maintenance of a fire department. Long v. Birmingham, 161 Ala. 427, 49 So. 881,

18 Ann. Cas. 507. Nor in the en forcement of sanitary and public health measures. Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771.

The

Looking to the authorities in other states, they are practically of one accord in holding nonliability for negligent injury to prisoners due to defective or insanitary prisons, confinement with drunken, vicious, or infected fellow prisoners, or exposure to cold or fire therein. same rule applies to workhouses and injuries to prisoners put to work as a penalty for offenses; such work being incidental to the execution of the sentence. The rule is based upon the general doctrine of immunity for the wrongful acts of officers engaged in public governmental duty. In such case the doctrine of respondeat superior is not recognized. 19 R. C. L. p. 1126, § 404, and notes 4-6; 6 McQuillin, Mun. Corp. § 2642, and notes, pp. 5453 to 5456; 4 Dill. Mun. Corp. § 1656, note, p. 2886; Nisbet v. Atlanta, 97 Ga. 650, 25 S. E. 173; Ulrich v. St. Louis, 112 Mo. 138, 34 Am. St. Rep. 372, 20 S. W. 466; Jackson v. Owingsville, 25 L.R.A. (N.S.) 180, and note (— Ky. —, 121 S. W. 672).

The case of Nisbet v. Atlanta, 97 Ga. 650, 25 S. E. 173, as to facts, is practically on all fours with the case at bar. Neither this case, nor any other coming to our attention, has discussed the dual relation occupied by the police officer in custody of the prisoner, and at the same time the corporate agent in working the prisoner at a corporate rather than governmental enterprise. It is generally held as in Alabama that in the prosecution of corporate rather than strictly governmental undertakings the doctrine of respondeat superior does apply in favor of third persons or employees injured or killed as the proximate result of the wrongful act of such agent acting in the line of his employment.

The doctrine of immunity in favor of municipal corporations is grounded in public policy. Mr. McQuillin, § 2642, speaks of the injustice of the rule announced as to