Section 101. The law is well settled, that a municipal corporation is not liable to an action for damages for the non-exercise of discretionary powers of a public or legislative character.

This principle is fully illustrated in the case of City of Freeport vs. Isbell, 83 III., 440, wherein appellee sought to recover damages for an alleged injury caused by a fall from the sidewalk in the night-time; the evidence showed that at the time and place of the accident the street was not lighted. The court said: "While it is true that, among the powers conferred upon the city council by the charter of the city of Freeport, is one providing 'for lighting the streets and erecting lamp posts,' yet it by no means follows that the failure of the 1 "Whether the neglected duty of a municipal corporation involves a liability, depends upon the nature of the duty - that is to say, whether it is imposed for the pecuniary profit or special advantage of the city; so, the city is liable; or hether it is a duty imposed upon the city as a public instrumentality of the State without pecuniary or other special advantage to the city; if so, the city is not liable." city to avail itself of the power conferred, could properly be regarded as an act of negligence, in an action brought by a person who received an injury on the street.

"Under the charter, the city had the power, if, in the wisdom of the council, it was deemed for the best interest of the city, to make provision for lighting the streets, but the exercise of that power was left discretionary with the legislative department of the incorporation.

"The power conferred was a merely discretionary one, which the city could exercise or not, as it thought best for the interest of the municipality. Cities may have power to erect market houses and open new streets yet a failure to do either will create no legal liability, although a private individual may be damaged by nonaction on the part of the city."

Ministerial Duties. - The law is settled beyond dispute that municipal corporations are liable for negligence in the performance or exercise of ministerial duties; they are likewise liable for damages for an injury arising because of their failure or omission to perform an absolute ministerial duty.2

Municipal corporations, like individuals, are required to execute their rights and powers with such precautions as shall not subject others to injury.3

Failure to execute and Enforce Ordinances.

Section 102. A municipal corporation is not liable in a civil action for the neglect of duty on the part of its officers in the enforcement of its ordinances, or even for a failure to enact ordinances in respect to matters within its proper jurisdiction. In the case of Levy vs. Mayor, etc., of New York, 1 Sandf. (N. Y.), 465, the plaintiff endeavored to hold the city liable for an injury committed by swine running at large in the streets, and basing the liability on the ground that the defendant was bound to provide for such a perfect execution of its ordinance upon that subject, so as to prevent the injury complained of, but the court held the action could not be maintained. Another illustration of the principle is found in the case of Forsyth vs. Mayor, etc., of Atlanta, 45 Ga., 152, where the plaintiff alleged, that the City of Atlanta had, by ordinance, defined fire limits in the city within which the erection of wooden buildings was prohibited, and that while the ordinance was in full force and effect the city council authorized the erection of a wooden building within said prescribed limits, which burned down and caused the destruction of the building of the plaintiff. Held, that the action could not be maintained.

2 Murphy vs. Lowell, 124 Mass., 564; Kiley vs. Kansas City, 87 Mo„ 103.

3 City of Springfield vs. LeClaire, 49 III., 476.

Licensees of a Municipal Corporation.

The doctrine of law appears to be well settled that, the licensees of a municipal corporation to pursue an independent trade or business for their own profit are not the officers or agents of the corporation so as to make it liable, on the principle of respondeat superior, for their conduct.4

Liability of a Municipal Corporation as a Property Owner.

Section 103. A municipal corporation holding property as a private owner is chargeable with the same duties and obligations, which devolve on individuals. Where it owns, leases or controls lands, houses, docks, piers, water and gas works, it is liable, in respect to the care of the same, for injuries arising from neglect, in the same manner as an individual owner is liable, and must respond in the same way for creating or suffering nuisances.5

4 Dillon, Mun. Corp. (3rd Ed.), Par. 953; Fowler vs. Alexandria, 3 Pet., 398.

In the case of Wilkins vs. Village of Rutland (Vt.), 25 Am. & Eng. Corp. Cas., 49,, it was held that where a village which owns an aqueduct for the supply of water permits a water box to project beyond the surface of the highway and one suffers an injury in consequence thereof, the court in rendering the decision used the following language: ' This places the neglect upon the defendant as the owner and manager of the aqueduct, and not as having the supervision of and charged with the duty of repairing the highway at that point. * * * It was an obstruction which it was the duty of the defendant as the owner and manager of the aqueduct to remove, and not its duty as having control of its repairs upon the highway."