Negligence cannot be imputed to tbe sovereign, and for this reason, in tbe absence of a statute, no private action for tort can
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be maintained against tbe State. It follows that such an action will not lie against a municipal corporation for damages resulting from the еxercise of governmental functions as an agency of the sovereign power. “The rule is firmly еstablished in our law,” says McQuillin, “that where the municipal corporation is performing a duty imposеd upon it as the agent of the State in the exercise of strictly governmental functions, there is no liability to private action on account of injuries resulting from the wrongful acts or negligencе of its officers or agents thereunder, unless made liable by statute. In other words, unless a right of actiоn is given by statute, municipal corporations may not be held civilly liable to individuals for 'neglect to perform or negligence in
performing’
duties which are
governmental in
their nature, and including generally all duties existent or imposed upon them by law solely for the public benefit.” Municipal corporations, sec. 2623;
Hill v. Charlotte,
Difficulty is often encountered in drawing the distinction between these two branches of municipal activity, the one sоmetimes apparently impinging on the other. Without undertaking to lay down any definition which would be universаl in its application, or to explain the apparent want of uniformity in some of the “bordеr-line cases,” we may say that in its public or governmental character a municipal corporation acts as an agency of the state for the better government of that pоrtion of its people who reside within the municipality, while in its private character it exercises powers and privileges for its own corporate advantage. Its governmental pоwers are legislative and discretionary, and for injury resulting from a failure to exercise them, or from their negligent exercise, the municipality is exempt from liability; but it may be liable in damages for injury proximately caused by negligence in the exercise of its ministerial or absolute duties. In
Moffitt v. Asheville, supra, Mr. Justice Avery
stated the рrinciple as follows: “When such municipal corporations are acting (within the purview of their authority) in their ministerial or corporate character in the management of proрerty for their own benefit, or in the exercise of powers assumed voluntarily, for their own advantage, they are impliedly liable for damage caused by the negligence of officers or agents, subject to their control, although they may be engaged in some work that will inure to the generаl benefit of the municipality. Shearman & Redfield on Neg., secs. 123 and 126; Dillon on Mun. Corp., 966 and 968; Thompson оn Neg., 734;
Meares v. Wilmington,
“On the other hand, where a city or town is exercising the judicial, discretiоnary or legislative authority conferred by its charter, or is discharging a duty imposed solely for the bеnefit of the public, it incurs no liability for the negligence of its officers, though acting under color of office, unless some statute (expressly or by necessary implication) subjects the corporation to pecuniary responsibility for such negligence.
Hill v. Charlotte,
The nonliability of a municipal corporation for injury caused by negligence in the exercise of its governmental functions may be illustrated by cases in which it is held that a city is not liable for a policeman’s assault with excessive force, or for the suspension of a town ordinance indirectly resulting in damage to property, or for injury to an employee while in the service of the fire department, or for failure to pass ordinances for the public good, or for the negligent burning of trash and garbage, оr for personal injury caused by the negligent operation of a truck by an employee in thе service of the sanitary department of a city.
Hill v. Charlotte, supra; Moffitt v. Asheville, supra,
p. 255;
Peterson v. Wilmington, supra; Hull v. Roxboro,
In applying these principles we must hold that the incinerator was built in the discharge of a gоvernmental function. The power to maintain public works, buildings and improvements; to remove garbage, and to provide for the health, comfort and welfare of the people, is conferred by statute upon the cities and towns of the State. C. S., secs. 2787 (5, 6) and 2799. It was in pursuance of this legislation that the furnace was constructed; and, as suggested in Snider v. High Point, supra, the acts complained of were in the performance of duties authorized by law solely for the public benefit, governmental in character and not merely private and corporate. There was error in overruling the demurrer.
Reversed.