This action was brought by the husband and by the minor son of Edith Chafor to recover damages for the death of Edith, occasioned by the negligence of the defendant city. Trial was had before a jury, resulting in a verdict for the plaintiffs. Judgment followed the verdict, and from that judgment and from the order of the court denying defendant's motion for a new trial it prosecutes this appeal.
Long Beach is a maritime city. Prior to the accident it had constructed and was maintaining wharf or pier extending into the ocean. The superstructure of this pier was supported by piles driven into the beach and ocean-bed. Near the outer end of this pier, and a little distance from it, the city had built and was also maintaining a structure known as an auditorium. The approach to the auditorium from the pier, a distance of about forty feet, was by means of a platform. From this platform doors gave entrance on to the main floor of the auditorium. The 24th of May, 1914, was *Page 480 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 *Page 481 "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 P. 256]; Means v. Southern California Ry., 144 Cal. 473, [1 Ann. Cas. 206, 77 P. 1001]; Hontz v. San Pedro etc. R. R.Co., 173 Cal. 750, [161 P. 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 *Page 482 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. *Page 483 (Bowden v. Kansas City, 69 Kan. 587, [105 Am. St. Rep. 187, 1 Ann. Cas. 955, 66 L. R. A. 181, 77 P. 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 P. 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 *Page 484 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 regardedquoad 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 public, 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 *Page 485 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 municipality 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 suchordained 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. Cityof 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 *Page 486 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 *Page 487 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 P. 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 Pasadena v. Pasadena Land etc. Co.,152 Cal. 579, [93 P. 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 P. 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 municipality, *Page 488 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 So. 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 A. 805], Henderson v. Kansas City, 177 Mo. 477, [76 S.W. 1045], and Cowley v. Borough ofSunderland, 6 Hurl. N. 233. In this last case the borough of Sunderland, under the permission of a Victorian statute, maintained baths and wash-houses 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 *Page 489 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 *Page 490 offered official resolution of the city, "fixing the charges for the use of the public auditorium in the city of Long Beach." In this resolution we find that conventions or mass meetings not for the purpose of financial gain, whether the assemblage be of the residents or nonresidents of the city of Long Beach, may have the use of the auditorium free. If financial gain enter into the purpose of the convention or mass meeting, then the charge shall be from twenty-five to one hundred dollars per day. When used by nonresidents of the city of Long Beach for purposes of entertainment and amusement the charge is $35 a day. When used by residents of the city of Long Beach for like purposes of amusement the charge is $15 a day. When used by nonresidents of the city of Long Beach for purely charitable or philanthropic purposes, if "an admission is charged, the proceeds to be used outside of the city of Long Beach, the charge shall be $25 a day. If only a collection is taken, the charge shall be $15." Wherein is to be drawn the slightest distinction between the use and operation of the city of Long Beach of this hall and the same use and occupation if it were owned by an individual and let for identical purposes? Nor does the fact that in an individual instance no rental charge was made at all affect the proposition, nor work a modification of the governing principle. A private individual granting the use of his hall for this occasion without rental charge would not be exonerated. The city of Long Beach, doing precisely the same thing, stands in precisely the same legal position. Therefore we consider the conclusion absolutely unescapable, upon principle and under the authorities, that the city of Long Beach was acting in a private and proprietary capacity in the general maintenance of this assembly hall, and was likewise so acting upon the specific occasion here in question when it was there let or its use permitted for the celebration of "Empire Day."
Neither of the California cases relied upon by appellant is at all in point. In Melvin v. State, 121 Cal. 16, [53 P. 416], plaintiff sought to recover damages from the state for injuries received at the state fair at Sacramento, and received a verdict which was set aside on motion. This court held that the state was not liable for two reasons: First, that it had distinctly disclaimed liability for the acts of its agents — the state board of agriculture — in declaring that "in no event shall the state be liable for any premium, award or *Page 491 debt created by said board of agriculture," and it declared that such a liability for injury was within the meaning of this language. Second, it held that the state board of agriculture was a mere corporate agency of the state for public and governmental functions, saying: "We find none of the elements of a private corporation in its creation, its powers, or the mode of their exercise. Its objects are public and educational. It exists for the sole purpose of promoting the public interest in the business of agriculture and kindred objects. It is an agency of the government, and in no sense an organization for pecuniary profit to the state." Denning v. State, 123 Cal. 316, [55 P. 1000], was an action by an employee of the harbor commission to recover for injuries received while in the employ of the commission as a night deckhand on a tug belonging to the state. This case is distinguished in Davoust v. City ofAlameda, 149 Cal. 69, [9 Ann. Cas. 847, 5 L. R. A. (N. S.) 536,84 P. 760], and in the latter case it is pointed out "that the plaintiff when injured was employed in a distinct branch of the service, viz., the protection against or extinguishment of fires, which, even in the case of municipal corporations, is uniformly held to be the exercise of a purely governmental function."
The negligent maintenance of the structure was sufficiently established by the evidence to justify the implied finding of the jury.
The conclusion already expressed concerning the general purpose of the construction of this auditorium, and the specific purpose of its use upon the day in question, does not at all depend upon the evidence which was introduced to the effect that the city did not charge any rental upon the day in question, and that it did rent portions of the auditorium for purposes of private gain. The fact that no rental was charged upon this particular day is in no wise determinative of the question, and the evidence of the rental for gain of portions of the structure and of the pier, even if excluded, could not have changed the inevitable result.
The appellant sought to introduce evidence to prove that the building was constructed in part upon tide-lands belonging to the state, and that its construction and maintenance of the building under these circumstances was ultra vires. We can perceive no possible force to this contention, and *Page 492 state it only that it may appear that it has not been overlooked.
The judgment and order appealed from are therefore affirmed.
Melvin, J., Lorigan, J., Sloss, J., and Lawlor, J., concurred.