the birthday of Queen Victoria. Certain of the inhabitants of Long Beach and of adjacent territory proposed to assemble in the auditorium for the purpose of celebrating this "Empire Day." A set program for the ceremonies and entertainment had been announced. In effect such part of the public as was interested in the event was invited to attend. Edith Chafor was a resident of the city of Los Angeles, and went to Long Beach for these ceremonies. They were inaugurated by a street parade headed by the municipal band. This parade was to end at the auditorium. While it was on the march people assembled on the platform, seeking admission to the auditorium. The doors were closed, so that a crowd collected on this platform. It gave way under the weight of this crowd, and carrying with it a part of the underpinning and superstructure of the auditorium building proper, precipitated some two hundred of the assemblage on to the beach sands twenty or more feet below. Edith Chafor was one of these, and her dead body was removed from the wreckage.

As the question whether or not the city of Long Beach, which admittedly had built and was maintaining this auditorium and its approach, was doing so in a governmental capacity is the principal question presented on this appeal, it becomes pertinent to point out that the construction and maintenance of this auditorium, which was essentially a hall for public assemblages and gatherings, were not enjoined. upon the municipality by positive law. Therefore the duty of maintenance was not a duty imposed by law. The auditorium was constructed under the permission of a statute of 1903. (Stats. 1903, p. 412.) This statute authorized and permitted a municipality to issue bonds and incur indebtedness for the purpose of constructing and maintaining such "public assembly or convention hall." It provided that the legislative body of the city "shall have power to appoint such officers or agents and to make and enforce such rules and regulations as may be necessary for the management, control, letting, and use of such public assembly or convention halls." It further provided that "all moneys derived from the use or hire of such assembly or convention hall shall be deposited in the treasury of the municipality to the credit of said public hall fund." After specifying the first applications to be made of the moneys thus received, it further declares that

"any surplus remaining may be appropriated and used for general municipal purposes." It is not in controversy but that this particular assembly hall was maintained under the provisions of this act, and that its management and control, also under the provisions of the act, were in the hands of defendant's board of public works. Control of the actual letting or permission to use the hall was retained by the city council.

The evidence discloses that upon the day in question the right to the use and occupancy of the hall had been given to an organization known as the Sons of St. George, and that the auditorium would be open to the general public after the Sons of St. George, with the paraders and their friends, had been admitted. The parade was led by a lieutenant of the city's police, with a number of the police force. These were followed by the municipal band. The mayor of the city and his wife were in the first automobile. The destination of all was the auditorium, which, under these circumstances, the mayor himself had entered just prior to the disaster. It cannot be said then that Edith Chafor was a trespasser at the time and place of her death. She was at least a licensee by permission or invitation, and if the city is responsible at all it is responsible for the exercise of ordinary care to see that such a licensee is not injured. (Schmidt v. Bauer, 80 Cal. 565, [5 L. R. A. 580, 22 Pac. 256]; Means v. Southern California Ry., 144 Cal. 473, [1 Ann. Cas. 206, 77 Pac. 1001]; Hontz v. San Pedro etc. R. R. Co., 173 Cal. 750, [161 Pac. 971].) With the ground thus cleared of these minor obstructions we can approach unhampered the consideration of the principal proposition: Was the city of Long Beach, at the time and on the occasion of this accident, managing this assembly hall in its governmental capacity or in a private and proprietary capacity?

To the resolution of this question we now come, prefacing the consideration by the statement, which will hereinafter be abundantly established, that there is no substantial controversy over the governing law. With the decision of the case of Russell v. The Men of Devon, 2 Term. Rep. 667, and the cases which followed it, it became an established principle of the English common law that an individual could not sustain an action against a political subdivision for negligence in its performance of any governmental function, nor of any

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public function expressly ordained and commanded by law. The reasonings supporting this were various. At times it was. declared that it was better for the individual to suffer than for the public to be inconvenienced, and that this principle was stronger than that other and conflicting one which declared that for every injury the law gives a remedy. The city was but a hand of the sovereign and it was the "right divine of kings to govern wrong." Later it was argued that the moneys of a municipal corporation were designed to be devoted to public ends, and that it would be a misapplication of them to permit any part of them to be used in the liquidation of private damages. But this principle of decision, while firmly established where not abrogated by statute, failed to commend itself alike to jurists and to legislators, and it was argued that as neither a political subdivision nor yet the state itself could injure a man's property without compensation, it seemed somewhat fallacious and absurd to say that it could negligently injure him or destroy his life without liability to compensation for its wrongdoing. It was a clear instance, so it was argued, of making the rights of property higher and more sacred than the rights of man. Thus it came about that courts soon made a discrimination in these cases between the purely governmental or ordained functions of the municipality, for remissness in the performance of which it was not liable, and those which, though undertaken and performed for the general benefit of the inhabitants of the municipality, were neither ordained nor in their nature. essentially governmental. And recognizing, as has been said, the inherent injustice of the established rule, the disposition of the courts on the one hand was to uphold such actions under a very rigid construction of the phrase "governmental functions," while upon the other hand the legislatures in many states by positive enactment did away entirely with the distinction and made municipal corporations liable to precisely the same extent for the same acts as were private corporations. And indeed it may be added that, even without legislative sanction, in at least one instance the highest court of a state has repudiated as unsound the distinction between the governmental and private functions of a municipal corporation, and has declared that in every case the mode and measure of the liability of a public corporation should be that prescribed as to an individual or a private corporation.

(Bowden v. Kansas City, 69 Kan. 587, [105 Am. St. Rep. 187, 1 Ann. Cas. 955, 66 L. R. A. 181, 77 Pac. 573].) And in this state it is not without interest to point out that the legislature has in terms imposed this liability upon all counties, cities, and cities and counties by a statute enacted in 1911 (Stats. 1911, p. 1115), though by reason of the fact that the substance of this enactment was neither declared nor hinted at in its title it is undoubted that for this reason the act is void. (Brunson v. City of Santa Monica, 27 Cal. App. 89, [148 Pac. 950].)

Again it is important to note that the true test does not rest upon the determination as to whether or not the municipality is reaping a monetary gain. A very large class of cases arises where this fact is established, as where parts of public buildings, such as a city hall, are leased or rented to private individuals, when it is uniformly held that the city in doing this thing is acting in a private capacity. But while it is true that the exaction of a rent or the making of a private profit is a very potent factor in determining the character of the act, the converse is not true. In other words, the act does not become governmental merely by virtue of the fact that the city from the performance of it reaps no direct pecuniary return. It may be and is equally a private, proprietary act if no financial return at all be exacted, or if the financial return which is exacted does not amount to a profit on the enterprise. The true principle has too often been confounded with the mere question of pecuniary gain. We may be excused, therefore, in elucidating this fact for quoting at some length. Thus in Dillon on Municipal Corporations, fifth edition, section 109, the principle is thus aptly and admirably stated:

The powers of a municipal corporation are... denominated "governmental, legislative or public; the other, proprietary or private. . . . On distinction of these powers rests the doctrine of the common-law liability of municipal corporations. In its governmental or public character the corporation is made, by the state, one of its instruments, or the local depository of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state rather than for itself. . . . But in its proprietary or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly from considerations connected

with the government of the state at large, but for private advantage of the compact community, which is incorporated as a distinct legal personality, or corporate individual; and as to such powers and to property acquired thereunder, and contract made with reference thereto, the corporation is to be regarded quoad hoc as a private corporation, or at least not public in the sense that the power of the legislature over it or the rights represented by it, is omnipotent."

The text of the learned author will be found supported by every well-considered adjudication. Noteworthy amongst these is the case of City of Galveston v. Posnainsky, 62 Tex. 118, [50 Am. Rep. 517], where the distinction between governmental and proprietary functions is elaborately considered and it is said:

"The tendency of the decisions is evidently to recognize the liability of even quasi-corporations to suit not expressly given by statute, when injury results from the negligence of officials or agents exercising powers purely ministerial in reference to matters which cannot be said to pertain to duties purely public; to matters which, though in a restricted sense are publie, yet more directly affect the welfare and pecuniary interest of the inhabitants of the quasi-corporation, upon whose will rests the determination whether the given act shall be performed and how it shall be performed, and upon whom rests solely the expense of the work put in operation by themselves, through which, at least indirectly, they receive benefit in which the general public, if at all, but slightly participates. . . .

"It would seem that, in so far as municipal corporations of any class, and however incorporated, exercise powers conferred on them for purposes essentially public-purposes pertaining to the administration of general laws made to enforce the general policy of the state-they should be deemed agencies of the state, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless, by statute, the action be given; that, in reference to such matters, they should stand as does sovereignty, whose agents they are, subject to be sued only when the state, by statute, declares they may be.

"In so far, however, as they exercise powers not of this character, voluntarily assumed-powers intended for the private advantage and benefit of the locality and its inhabitants -there seems to be no sufficient reason why they should be