* Corpus Juris-Cyc References: Municipal Corporations, 43CJ, section 229, p. 229, n. 70; section 315, p. 300, n. 94; section 1701, p. 922, n. 19; section 1702, p. 926, n. 28; section 1713, p. 936, n. 31; section 1717, p. 940, n. 80; section 1991, p. 1218, n. 86; As to liability of municipal corporation for negligence of officers or servants in performance of governmental functions see annotation in 10 A.L.R. 480; 32 A.L.R. 981; 47 A.L.R. 816; 19 R.C.L. 1107; 3 R.C.L. Supp. 995; 4 R.C.L. Supp. 1308; 5 R.C.L. Supp. 1058; 6 R.C.L. Supp. 1158; 7 R.C.L. Supp. 652. A municipality, in the exercise of its police powers, acts in a governmental and not in a private capacity, and is not liable for torts committed by its officers and agents in attempting to carry out and enforce its ordinances and other regulations adopted by it in pursuance of such powers. City of Gulfport v. Shepperd,116 Miss. 439, 77 So. 193; Alexander v. Vicksburg, 68 Miss. 564, 10 So. 62; McQuillin on Municipal Corporations (2 Ed.). vol. 6, sec. 2630.
It is sometimes difficult to determine in the particular case under consideration whether the municipality has acted in its governmental or in its private capacity. A municipality, in the exercise of its governmental or police powers, is clothed with a part of the sovereignty of the state; it is one of the state's governmental agencies. In the exercise of its nongovernmental or private powers, the municipality stands as an individual or private corporation, so far as its acts are concerned. McQuillin on Municipal Corporations (2 Ed.), vol. 6, sec. 2625.
Among the police powers conferred on municipalities by our code chapter on the subject, section 3329, Code of 1906, as amended by chapter 274, Laws of 1926, Hemingway's Code of 1927, section 6765, provides as follows:
"To make all needful police regulations necessary for the preservation of good order and the peace of the municipality; *Page 159 and to prevent injury to, destruction of, or interference with public or private property; and to adopt ordinances prohibiting within the corporate limits the commission of any act which amounts to a misdemeanor under the laws of the state."
In the establishment and regulation of schools, hospitals, poorhouses, fire departments, police departments, jails, workhouses, and police stations, municipalities act in their governmental capacity. There seems to be practically no conflict in the authorities to that effect; and it also appears from the authorities to be equally well settled that municipalities, in the adoption and enforcement of ordinances and regulations for the prevention of the destruction of property by fire or flood, and the manner and the character of the construction of buildings, act in their governmental capacity, and not in their private capacity. McQuillin on Municipal Corporations (2 Ed.), vol. 6, section 2625; Id., vol. 3, section 1918. All such ordinances and regulations, however, must be reasonable, otherwise they will be void and nonenforceable; and the question of their reasonableness is a judicial question.
Applying the rule of pleading to appellants' declaration, that a pleading must be most strongly construed against the pleader, the case made is this: Town Creek runs through the municipal limits of appellee in a southerly direction. There have been disastrous floods from this creek, destroying and damaging much property in the limits of the municipality. In order to prevent a recurrence of such floods, and the consequences thereof, appellee acquired by purchase and eminent domain proceedings a part of the bed of the channel of the creek, and thereafter straightened the flow of its waters by means of an artificial channel. After so doing, appellee sold and conveyed parts of the bed of the channel to several purchasers, among them Mrs. Annie Stone Odeneal, the predecessor in title of J.H. and Virgil Howie to the lot on which appellants were constructing the building *Page 160 in question, with the reservation in its conveyances, of a perpetual easement in the property, as shown by Exhibit E to appellants' declaration, copied above in the statement of the case. And in order to facilitate the free flow of the waters of Town Creek through the artificial channel, and thereby prevent its overflow, and a recurrence of the destruction and damage to property in the municipality, appellee reserved in such conveyances, including that to Mrs. Stone, under which the Howies claim title, the right to direct and control the manner of the construction of the piers to any building erected over the bed of the channel. And it is also fairly inferable from the declaration that appellee had another purpose in making such reservation, namely, to insure the public safety by requiring buildings erected over the channel to be constructed in a permanent and stable manner.
Taking the averments of appellants' declaration in connection with the reservation in appellee's conveyance of the Howie lot, we think it plain that in the doing of the acts complained of appellee was attempting to prevent the destruction of property in the municipality by floods from Town Creek, and also to insure the public safety by prescribing the manner in which buildings should be constructed over the artificial channel of the creek. Therefore, under the law, appellee, in the doing of such acts, was acting in its governmental and not in its private capacity, and is not liable for the torts of its officers and agents in carrying out its purposes.
And, furthermore, we are of opinion that the judgment of the court was justified upon another ground, namely, the declaration shows that when the officers and employees of appellee made the alleged unlawful demand upon appellants that the building be constructed in a certain manner, appellants yielded to such demand without being forced by appellee to do so. It is true the declaration alleges in general terms that appellee's officers and agents forcibly took charge of the construction *Page 161 of the piers placed in the artificial channel of the creek; but construing the declaration as a whole, and most strongly against the pleader, it shows that appellee's officers and agents, in doing the acts complained of, used no force whatever. The declaration sets out in detail what appellee's agents and officers did and said, which amounts to no more than this: They demanded that appellants do the work in a certain manner, and to those demands appellants yielded. The declaration does not allege that any force or threats were used that would amount to an invasion or breach of appellants' legal rights. Appellants did not have to yield to the demands of appellee's officers and agents, if such demands were without authority of law. They should have stood on their rights, and, if necessary, tested them in the courts. Appellants were under no more obligation to yield to the demands of appellee, if such demands were unlawful, than one private individual would be obligated to yield to the unlawful demands of another private individual.
Affirmed.
ETHRIDGE, PACK, and COOK, JJ., dissenting.