relieved from that liability to suit and measure of actual damage to which an individual or private corporation exercising the same powers for a purpose essentially private would be liable."

We have thus been at pains to set forth the principle determinative of the question as to whether or not a particular act pertains to the governmental rather than to the proprietary activities of a city, because the discussions of some courts, notably those of Massachusetts, have been misconstrued upon the element of pecuniary gain. Hill v. City of Boston, 122 Mass. 344, [23 Am. Rep. 332], illustrates this. It is to be noted that the court is there dealing, and so expresses itself, with the "neglect of a public duty imposed upon it [the municipality] by law for the benefit of the public and from the performance of which the corporation receives no profit or advantage." The particular case was an action of tort against the city of Boston to recover damages for injuries received by a child while attending a public school, under the express duty imposed by general law to maintain such public schools, and it is held that the munici pality is not liable. The supreme court of Massachusetts did not in any way broaden the definition of governmental functions as applied to municipal acts. It did not rest its decision, as well it might, upon the proposition that the maintenance of public schools, being a duty enjoined upon the municipality, partook of the nature of a governmental function. Nor yet, while recognizing and declaring that it was a duty, the performance of which was enjoined upon the city by general law, did it exonerate the city for liability on this account, but held and declared that in the performance of such ordained duties the city would not be liable when the performance of the duty was not connected with any pecuniary benefit to the municipality, thereby plainly implying that even though the duty were ordained by general law, if it contemplated any pecuniary benefit to the municipality, it would stand liable as would a private individual. To illustrate the unwillingness of the Massachusetts courts to extend the doctrine of municipal immunity, the case of Dickinson v. City of Boston, 188 Mass. 595, [1 L. R. A. (N. S.) 664, 75 N. E. 68], is instructive. The city of Boston was by law responsible for the negligent maintenance of its public streets. To prevent accidents on those streets it was not required by

law to light them at night. However, by a permissive statute the city "was authorized but not required to maintain lamps to light its streets." It maintained such lights for the general benefit of the inhabitants, for their general safety, and specifically to lessen the danger of accidents upon the highways. One of its lamp-posts, negligently maintained, fell and injured the plaintiff. In his action brought to recover damages these matters are discussed, and it was urged, amongst many other reasons, that the city was not liable in that it was reaping no pecuniary benefit from the maintenance of the lights, but that the benefit was a general public benefit to the inhabitants. The supreme court of Massachusetts made answer: "It was unnecessary for the plaintiff to show that any direct commercial profit had been derived. The indirect benefit thus conferred supplied a sufficient motive for the defendant's action. Having voluntarily taken the enterprise for its private benefit, and not acting in the performance of any public duty, it is liable for negligence in the management of its corporate property when used for such purposes." (Citing numerous cases.) Still further, as showing the limits within which the courts circumscribe the meaning of the phrase "governmental function," may be cited Ehrgott v. Mayor of New York, 96 N. Y. 264, [48 Am. Rep. 622], where it is held that it is settled by a long line of decisions that municipal corporations proper, having the powers conferred upon them respecting streets within their limits, owe to the public the duty to keep them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for special injury resulting from neglect to perform this duty; and the City of Kokomo v. Loy (Ind.), 112 N. E. 994, where the supreme court of Indiana applies the same doctrine to injuries resulting from the negligent upkeep of a public park as well as public streets.

That the distinction between governmental and private functions has been adopted as the principle governing the adjudications in this state, our decisions leave no doubt. Thus in the early case of Touchard v. Touchard, 5 Cal. 306, 307, it is said: "A corporation, both by the civil and common law, is a person, an artificial person, and although a municipal corporation has delegated to it certain powers of government, it is only in reference to those delegated powers that it will be regarded as a government. In reference to all other of

its transactions, such as affect its ownership of property in buying, selling, or granting, and in reference to all matters of contract, it must be looked upon and treated as a private person." In Bloom v. San Francisco, 64 Cal. 503, [3 Pac. 129], in the conduct of the municipal hospital the city and county maintained a nuisance. Action was brought to recover damages occasioned by this nuisance, and it was held that "the city and county of San Francisco had such proprietorship of the city and county hospital as rendered it liable for damages in the case presented." In South Pasa dena v. Pasadena Land etc. Co., 152 Cal. 579, [93 Pac. 490], it is declared that in the carrying on of a water service for the benefit of South Pasadena the city of Pasadena will not be acting in its political, public, or governmental capacity. And in Davoust v. City of Alameda, 149 Cal. 69, [9 Ann. Cas. 847, 5 L. R. A. (N. S.) 536, 84 Pac. 760], this court, reviewing our cases, and drawing the indicated distinction between governmental and proprietary functions, held that the negligent operation of an electric-light plant by the city, which light plant was operated for the twofold purpose of lighting the city and furnishing electric light and power to its inhabitants, made the city liable, upon the ground that it was not exercising any governmental power or function.

Nor is it difficult to set forth the definition of governmental functions as applied to a city. Under the theory of the common law, that the municipality is protected from liability only while exercising the delegated functions of sovereignty, the governmental powers of a city are those pertaining to the making and enforcing of police regulations, to prevent crime, to preserve the public health, to prevent fires, the caring for the poor, and the education of the young; and in the performance of these functions all buildings and instrumentalities connected therewith come under the application of the principle. (City of Kokomo v. Loy (Ind.), 112 N. E. 994.)

But it is of course true that modern cities and towns enter upon many forms of activity, operate utilities for the benefit of the inhabitants, and provide many means for the easing or improving of the condition of the people that were never dreamed of at common law. Nevertheless the uniform holding as to all such activities on principles manifestly just to the people themselves is that no matter how beneficial they may be in a general sense to the inhabitants of the munici

pality, unless they are governmental in their essence, the municipality's conduct in managing them is controlled by the same rules of liability that apply to an individual. Thus, while schoolhouses, city halls, jails, firehouses, are with much uniformity held to be instrumentalities for governmental purposes, no such rule applies to other buildings constructed by a municipality, though for the benefit, convenience, or advantage of its people. And even in the case of strictly governmental buildings, if the city shall let a portion of one of them to a private tenant, while retaining control of the rest, that tenant is entitled to his recovery for the city's negligent maintenance of his premises. (Worden v. New Bedford, 131 Mass. 23, [41 Am. Rep. 185].)

But when the building is one constructed and maintained not for governmental purposes, then are the authorities uniform that even though it be so maintained under permission of the statute, and though it be maintained for the benefit of the inhabitants, or for such of them as may desire to use it, the municipality acts in a private, proprietary capacity and is liable for its torts as would be a private individual. The cases so holding with reference to municipal water-plants and their structures, and gas-plants and their structures, are so numerous as not even to call for specific citation. The same rule is universally applied to market-houses built by the municipality and maintained for the convenience of the people. (Barron v. Detroit, 94 Mich. 601, [34 Am. St. Rep. 366, 19 L. R. A. 452, 54 N. W. 273]; Town of Suffolk v. Parker, 79 Va. 660, [52 Am. Rep. 640]; Weymouth v. New Orleans, 40 La. Ann. 344, [4 South. 218]; Baltimore v. Brannon, 14 Md. 227.) As instances of the application of the same rule to other buildings may be cited Libby v. Portland, 105 Me. 370, [18 Ann. Cas. 547, 26 L. R. A. (N. S.) 141, 74 Atl. 805], Henderson v. Kansas City, 177 Mo. 477, [76 S. W. 1045], and Cowley v. Borough of Sunderland, 6 Hurl. & N. 233. In this last case the borough of Sunderland, under the permission of a Victorian statute, maintained baths and washhouses for the use of the inhabitants. The argument was there made that the woman, injured in a mangle, which it was charged was negligently constructed and maintained, was a mere volunteer and licensee, and electing to use the machine could not recover. But answer was made that the statute was passed for the benefit of the poor and more ignorant

classes of the population. The corporation chose to avail itself of its powers to erect these washhouses, and in the discharge of the statutory duty thus undertaken it was bound to exercise ordinary care and diligence.

What, then, remains to be said concerning the building here under consideration? It was not a structure, the maintenance of which was enjoined by law. It was not a building used for any of the governmental functions of the municipality. True, it was maintained for the benefit of the municipality in the sense that it afforded the populace a meeting place for many forms of amusement and instruction. But in all these respects it differed no whit from any other auditorium or assembly hall built and maintained by private capital for the same purposes. The city had full charge of it, could let it out, or refuse to let it out at its pleasure. The act under which it was authorized, though not compelled to build it, contemplated that it should be let for profit, and that the proceeds of these lettings should go to defray the expense of maintenance and the cost of construction. That in any individual instance the city allowed it to be used without a rental charge, no more affected the governing principle than it would be affected if a private proprietor did the same thing. The payment of rent, much or little or none at all, did not transform the particular use of this assembly hall, which use was let or permitted for the celebration of the birthday of a foreign potentate, into a governmental function of the city of Long Beach. Appellant in its brief declares the proposition to be "whether the law authorizing the act was such as authorized a proprietary or governmental institution and in this respect the design of the act is the main thing to be held in mind and not the result." Considering that design, and therein noting that the act provides for a rental charge for the use of the assembly hall, and contemplates that that rental charge should or may be sufficient to pay for the operating expenses, to provide a sinking fund, and even to contribute to the general funds of the city, can it be doubted for one moment that in the view of the legislature the city was simply empowered to enter into a proprietary business for its personal advantage and financial gain? Upon the other hand, that the city of Long Beach maintained this assembly hall for the very purposes indicated by the legislative permission is made manifest by the