acting in this private capacity, a municipality is liable for negligence to the same extent as a private corporation or individual, and is liable to its employees to the same extent as other employers. . And a municipality will not be permitted to say whether or not it shall be held liable for personal injuries resulting from negligence in the performance of such duties, nor to impose unreasonable restrictions upon the rights of injured persons to bring actions against it for damages therefor." 6 McQuillin, Mun. Corp. p. 5394, § 2622, and authorities cited in footnote.

See also New Orleans v. Kerr & Gally, 50 La. Ann. 413, 69 Am. St. Rep. 442, 23 So. 384, and authorities therein noted.

was for the protection of the bondholders and to insure a continuance of its operations for the benefit of the people of the community. However, this has not had the effect of making it a state agency, solely charged with the discharge of a governmental function; nor has there been any provision exempting it from the character of liability here claimed. Its nature and purpose still remain the same, i. e., that it is a department of the city of New Orleans, discharging a municipal or corporate function for private gain and for the private benefit and advantage of its inhabitants.

We see nothing in this case, and no pertinent authority has been cited, to take it out of the ordinary class for which the city through the public belt railroad commission is liable for the accident, if due to the fault of the defendant, its agents, or employees.

For the reasons assigned, the judgment of the Court of Appeals is annulled and set aside, the exception of no cause of action is over

ruled, and this case is remanded to the said court to be decided upon its merits; defendant to pay the costs of this application, and all other costs to await final judgment.

Rehearing denied by the whole court March 3, 1924.

When a function is undertaken by a municipality in its private or proprietary capacity, for the profit, benefit, or advantage of the corporation or of the people who compose it, rather than for that of the public at large, it is liable for the negligence of its employees to the same extent and under the same conditions as a private corporation. 19 R. C. L. 1109.

The general view is that a municipality, in constructing or operating a railroad or street railway, acts

in a proprietary, rather than a governmental, capacity, so as to render it liable for torts to the same extent that an ordinary railroad company or individual would be at least, in the absence of some special exemption. DAVIS V. NEW ORLEANS PUBLIC BELT R. Co. (reported herewith) ante, 1303, overruling dicta to the contrary in Jones v. New Orleans (1918) 143 La. 1074, 79 So. 865; Green v. Amarillo (1922) Tex. Civ. App., 244 S. W. 241; Tutor v. Amarillo (1922) Tex.

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Civ. App. 244 S. W. 632; Tobin v. Seattle (1923) Wash. 221 Pac. 583. And that a city, in constructing, operating, and leasing a subway, is a railroad corporation carrying on a business enterprise in a proprietary rather than a sovereign capacity, see Re Rapid Transit R. Comrs. (1909) 197 N. Y. 81, 36 L.R.A.(N.S.) 647, 90 N. E. 456, 18 Ann. Cas. 366, and Sinsheimer v. Underpinning & Foundation Co. (1917) 178 App. Div. 495, 165 N. Y. Supp. 645, affirmed without opinion in (1919) 226 N. Y. 646, 123 N. E. 889, both of which involved liability for damages arising from proper construction.

For instance, it has been said that "if a municipality owns a railroad, and operates it for gain, there is no question but that it is liable for negligence in connection therewith." McQuillin, Mun. Corp. § 2685.

And the majority of the cases support this conclusion.

Thus, in Green v. Amarillo (1922)

Tex. Civ. App. -, 244 S. W. 241, in holding that a municipality owning and operating a street railway system operated the same in its private or corporate capacity, as distinguished from its governmental capacity, so that it was liable for the negligent injury of a passenger, the court said: "The modern city performs functions of a dual nature. Primarily it is a governmental agency, clothed with limited powers of sovereignty, exercised for 'purposes essentially public -purposes pertaining to the administration of general laws made to enforce the general policy of the state.' The city may be granted the same immunity against claim for damages for its acts done in its governmental capacity as is enjoyed by the general government in such matters. Other acts of the city are done in the exercise of powers not strictly governmental, but 'voluntarily assumed and exercised for the private advantage and benefit of the locality and its inhabitants.' For its acts done in this latter capacity, the city, in the absence of some special exemption, is liable to the same extent as any private person or corporation performing the

And, again, in Tobin v. Seattle (Wash.) supra, in holding that a municipality owning and operating a street railway was liable for injuries caused by the negligence of its employees, the court said: "We cannot agree with the respondent's contention that the alleged acts of negligence were those required to be done by it while acting in a governmental capacity. The city owned and operated this street railway system in its proprietary capacity, and whatever duty it owed to its patrons would be those which the law imposes upon it while acting in its private or proprietary capacity. . . . Generally speaking, a municipality which owns and operates a street railway owes the same duties to its patrons that a private owner and operator would owe to his patrons under the same circumstances." Applying this rule, the court held that the municipality was liable for negligence in not properly lighting a stopping place between street intersections, but that it was under no duty to mark out safety zones or to keep a watchman stationed at a stopping place.

And in the reported case (DAVIS v. NEW ORLEANS PUBLIC BELT R. Co. ante, 1303), it was expressly held that the city of New Orleans, in operating the Public Belt Railroad, was exercising a municipal or corporate function for private gain, and not a governmental agency, and, therefore, that it was liable for the killing of a person at a street crossing resulting from negligent operation of a train by its agents or employees. In reaching this conclusion the court distinguished Jones v. New Orleans (1918) 143 La. 1074, 79 So. 865, wherein it was held

that the city was not liable for the negligent killing of a person by a policeman employed in guarding the property of the same railroad involved in the DAVIS CASE, on the ground that in the latter case the negligent employees were discharging the ordinary duties connected with the operation of the railroad, whereas in the Jones Case the negligent servant was a duly appointed police officer, and was clearly acting in guarding the railroad property as an agent for the discharge of the governmental duties of the city out of which no liability in damages can arise. However, the court in the Jones Case, as a matter of fact, placed its decision upon the ground that the city, in operating the railroad, was engaged in a purely governmental function, and, in so far as the argument went on that point, is expressly disposed of by the court in the DAVIS CASE on the theory that such matter constitutes obiter, since the finding that the servant complained of was a duly appointed police officer rendered it unnecessary for the court to determine the capacity in which the city operated the railroad.

And in Coughlan v. Cambridge (1896) 166 Mass. 268, 44 N. E. 218, where defendant city, in making a. fill around its waterworks, hired a temporary railroad, train, and crew, and was regarded as operating a railroad through its own servants, it was held that it was liable under the Massachusetts Employers' Liability Act (Stat. 1887, chap. 270) for injuries to a servant caused by the negligent operation of the hired train, the court also having found that such act applied to cities.

And it has been held that, in the absence of permissive constitutional provision, a municipality cannot, by virtue of a statute authorizing it to operate a street railway and to provide for exemption from liability for negligent operation, so exempt itself, since the legislature cannot so delegate authority to a municipality to enact a law exempting itself from such liability, but is confined to delegation of authority as to matters of local self-government and police regulations, to neither

On the other hand, it has been held that the city of Boston is not liable for the negligent injury of an employee while constructing its municipal subway, on the ground that the work was a public one, even assuming that the work was done under the supervision of officers who were its servants. Thus, in Mahoney v. Boston (1898) 171 Mass. 427, 50 N. E. 939, 4 Am. Neg. Rep. 395, where the defendant city, acting through the Boston Transit Commission, constructed a municipal subway to be leased for street railway purposes, it was held that the work was a public one, and that the commissioners were public officers charged with the performance of public duties; but the court said that if the work, though public, was partly commercial in its character, and was for the benefit of the city, and the com missioners acted as its servants, the city would be liable under the Federal Employers' Liability Act for the negligence of its foreman, and discussed the question as though the commissioners were the servants of the city. Morton, J., said: "But, assuming that they could be regarded as in some sense the servants of the city, we think that the element of commercial advantage, or pecuniary benefit to the city, is not such as to render it liable for the negligence of the foreman. As already observed, the work is intended to promote the convenience of the public generally. The statute requires the city to apply any rents or compensation which it may receive from the use of any of the 'subways, tunnels, or adjacent locations, or for any use of any lands or rights taken under authority' of the act, first, to meet any deficiency in sinking-fund requirements for the bonds; second, to meet interest on the bonds; and, third, to use the surplus, if any, as a part of the

general revenue of the city for the maintenance of the public parks. The city can use the rent or compensation which it receives only as thus directed. For aught that appears, the legislature may direct it to be used in some other manner. The city has no general control over it. The undertaking, so far as the city is concerned, lacks the features of one which is partly commercial in its character, and intended for the benefit of the city. The surplus, if any, is to be used for the support of the public parks; in other words, for the general public benefit, which has some tendency to show that the legislature regarded the work as one of general public utility. The case differs, therefore, from those cases in which it has been held that when a city or town engages in a public undertaking which is partly commercial in its character, and over the construction and management of which it has full control by means of agents or officers appointed or elected by it, and the benefits of which it receives, it is liable for injuries sustained in consequence of the negligence of one employed in doing the work, even if it be conceded that for the time being there is a surplus, and that the city is benefited by having it applied to the maintenance of the parks, and being relieved to some extent from the obligation to raise by taxation money which it otherwise would be obliged to raise. .

The

benefit is a mere incident of an undertaking which is public in its nature, and is carried out by public officers over whom the city has no control, and no case, we think, has gone so far as to hold a town or city liable under such circumstances." And in Murphy v. Hugh Nawn Contracting Co. (1916) 223 Mass. 404, 111 N. E. 890, it was again held that the building of a Boston tunnel was a public work, and that the members of the Boston transit

commission were neither servants nor agents of the city, but were public officers, so that the city was not liable for their negligence. And see McGovern v. Boston (1918) 229 Mass. 394, 118 N. E. 667, wherein the court again discussed the relation between the city and commissioners constructing a municipal subway.

The decision in Dilluvio v. New York (1911) 73 Misc. 122, 132 N. Y. Supp. 531, that a municipality could not be held liable in an action to recover damages for personal injuries to a passenger injured through the negligence of a city employee in operating a train, was upon the ground that it had no authority to construct or operate the railroad, the theory being that a city cannot be held liable for the unauthorized acts of its officers and employees.

In England, where the municipal operation of tramways and light railways is quite common, it seems that operating municipalities are liable both for negligent construction and operation, but that there are certain statutes which apply to municipalities, and which, while not exempting them from liability for torts, contain provisions protecting them to a certain extent-such, for example, as the Public Authorities Protection Act of 1893, which establishes a short period of limitations and contains other beneficial laws. See Parker v. London County Council [1904] 2 K. B. (Eng.) 501, 73 L. J. K. B. N. S. 561, 68 J. P. 239, 52 Week. Rep. 476, 90 L. T. N. S. 415, 20 Times L. R. 271, 2 L. G. R. 662, Lyles v. Southend-on-Sea Corp. [1905] 2 K. B. (Eng.) 1, 74 L. J. K. B. N. S. 484, 69 J. P. 193, 92 L. T. N. S. 586, 21 Times L. R. 389, 3 L. G. R. 691-C. A., and Hutchins v. London County Council (1915) 85 L. J. K. B. N. S. (Eng.) 1177, 114 L. T. N. S. 377, 80 J. P. 193, 14 L. G. R. 313, 60 Sol. Jo. 156, 32 Times L. R. 179-H. L. G. J. C