I concur. The rule is well established in this state that, in the absence of a statutory provision permitting it, an action will not lie against a municipal corporation for damages caused by the negligence of its officers, agents, and servants in the performance of the public or governmental duties of such corporations. (Winbigler v. City of Los Angeles, 45 Cal. 37; Howard V. San Francisco, 51 Cal. 52; Tranter v. City of Sacramento, 61 Cal. 271; Stedman v. San Francisco, 63 Cal. 193; Chope v. Eureka, 78 Cal. 589, [21 Pac. 364, 12 Am. St. Rep. 113]; Arnold v. San Jose, 81 Cal. 618, [22 Pac. 877] ; Doeg v. Cook, 126 Cal. 213, [58 Pac. 707, 77 Am. St. Rep. 171]; Ukiah v. Ukiah etc. Co., 142 Cal. 182, [75 Pac. 773, 100 Am. St. Rep. 107]; Sievers v. San Francisco, 115 Cal. 654, [47 Pac. 687, 56 Am. St. Rep. 153].) The statement of the rule implies that there are other functions and powers of municipal corporations, for the negligent performance of which by their officers and servants, such corporations are liable. The distinction is clearly stated in the principal opinion. The authorities uniformly hold that the duties arising from the operation of gasworks, electric works, waterworks, and such like public utilities, are of the private nature which is required to make municipal corporations liable for damages caused by negligence therein. It is evident, however, *76that the division of municipal functions into two classes, one public and governmental, the other private and corporate, is without any real foundation, and is made solely from the supposed necessity of doing so in order to allow a suit to be maintained for such injuries. In its public functions a municipality was said to represent the sovereign power, and as such to be exempt from private action. Hence, with respect to the class of powers here involved, it was considered necessary to designate them as private in character, in order to uphold a suit to recover for these injuries. The only reason given for classifying the power to administer public utilities as private and corporate, is that private persons and corporations frequently engage in such enterprises; that they are carried on by the city for its own profit; and, in a few cases, that the municipality has contracted with the sovereign power to do-such things, and is therefore acting in a private capacity. None of these reasons is of any force. Private persons and corporations also frequently undertake to give police protection and fire protection to the inhabitants of cities. Yet these functions, in all cases where they are performed by a city, are always considered to be public and governmental, thus showing that the fact stated constitutes no reason for the distinction. It may be that in former times cities' engaged in such enterprises for the sake of the profit to be made thereby. But, under our system, its charges for service are fixed solely for the purpose of covering the operating expenses and providing a sinking fund, and the profit, if any, is merely incidental. The making of contracts with the state by municipalities to supply such public needs is with us utterly unknown. In our form of government and under our constitutional provisions, a city can have no active powers or functions that are not public and governmental in character. (Low v. Marysville, 5 Cal. 214.) Its merely passivé power to hold and possess property to which it has lawfully acquired title may not differ materially in its effects, with respect to the liability for a misuse of such property, from those of a private corporation or person to hold and possess such property, and after such property has for any reason become no longer necessary for municipal purposes, its continued ownership and possession may have no direct relation to the public *77welfare or benefit. But its active powers are all given for the purpose of enabling it the better to administer public affairs so as to subserve the public good and promote the general local public welfare, or, as the agency of the state, affairs of a more general concern, which are primarily committed to the state; and all such active powers, whether of one class or the other, are essentially of a public and governmental character.
It must be conceded that the rule holding cities liable for such injuries is more conducive to justice than would be the contrary. “ The rule of law is a general one, that the superior or employer must answer civilly for the negligence or want of skill of his agent or servant in the course or line of his employment, by which another, who is free from contributory fault, is injured. Municipal corporations under the conditions herein stated, fall within the operation of this rule of law.” (2 Dillon on Municipal Corporations, sec. 968.) Our Civil Code declares that “No one should suffer by the act of another” (section 3520), and “For every wrong there is a remedy” (section 3523). The doctrine here applied is indeed the general rule applicable to all cases of tort, and the exemption of cities and other public corporations from liability for negligence in the exercise of some of its public and governmental functions is really in the nature of an exception to that rule. It is against natural justice that it should be made possible by any system of jurisprudence that one should receive an injury at the hands of another who is subject to be sued in every ordinary form of action, and that that other should have immunity from any action for redress by the person injured. Nor is the doctrine unjust or unfair to municipal corporations. Private corporations engaged in enterprises of this character, as is well known, are liable for the neglect of their agents and servants in the line of their duties, and the expenses caused thereby form a part of the necessary operating expenses of the business, and their rates must be fixed with that item in view. When municipal corporations engage in the same business, although they may do so solely for the general public benefit, and not for the profit to be derived therefrom, it is but fair and just that they should be subjected to the same burden. This burden can easily be *78shifted to the general public, who should bear it, by adjusting the rates charged for the service so as to cover this additional cost of operation.
The question how far, and in the exercise of what powers, a city should be held liable for such injuries is one of policy exclusively. The legislature has the power to dictate this policy. It has been settled at common law, upon various grounds (for it has not always been based upon this supposed distinction), that municipal corporations are liable for injuries caused in the exercise of certain powers, and are not liable for injuries arising from certain other powers, unless such liability is created by statute. Among the powers for which it is held liable in this manner are the power to carry on for the public use gasworks, electric works, waterworks, and other like public utilities, and this was a well-settled rule of the common law. (Hill v. Boston, 122 Mass. 344, [23 Am. Rep. 332]; 1 Dillon on Municipal Corporations, secs. 26, 27, 66, 67; 2 Dillon on Municipal Corporations, sees. 961, 966.) This common law has been carried into our jurisprudence and made the rule of decision in all the courts of this state by section 4468 of the Political Code. So far as the class of powers here involved is concerned, the rule is manifestly in accordance with justice, and is also in accordance with good public policy. It is not good policy that a person who receives an injury by the negligence of public servants engaged in carrying on such public utilities should be made to suffer the injury without recourse upon the public which receives the benefit of the services, and which, by reason of the proposed exemption of the public from such liability, would be enabled to obtain the service at less cost than if it were performed by private persons. This rule, having been established at common law, and being in existence at the time the statute was passed authorizing the creation of cities of the class to which Alameda belongs, must be considered in construing the statutory provision for the creation of such cities. It is provided by the statute (section 750 of the Municipal Corporation Act) that every municipal corporation of the fifth class “may sue and be sued in all courts and places, and in all proceedings whatever.” (Deering’s Gen. Laws 1897, p. 845.) I think this provision, in connection with section 4468 of the Political *79Code, and the established common-law rule, should be construed as a statutory declaration that cities of this class are liable for the negligence of its agents and servants in all cases where such liability was established at common law, and this can be upheld as a statutory provision without the necessity of resorting for its support to a distinction which is wholly fictitious, and which will produce, as such arbitrary distinctions are apt to produce, embarrassing consequences, if recognized as real and applied to other questions.