“The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of factual averments well stated and such relevant inferences as may be deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader.” McKinney v. High Point, 237 N.C. 66, 70, 74 S.E. 2d 440; Board of Health v. Commissioners, 173 N.C. 250 91 S.E. 1019, and cases cited.
On this appeal, upon the facts alleged, we must determine whether the City of Raleigh is liable for the alleged tortious acts of its City Manager.
It is first noted that the alleged ulterior motives are primarily, if not wholly, Carper’s personal motives. Indeed, the allegation that Carper’s motive was to frighten the Bonding Company on the bonds of plaintiff and of the supervisor of the Tax Department, when read in context, implies that he thereby sought either to avoid liability for his own neglect or to protect “his pet employees” from involvement or liability for the alleged losses. The allegation is that Carper’s motive in frightening the Bonding Company was to collect “said alleged losses through the threat of a criminal prosecution of the plaintiff.” (Our italics) In an action for malicious prosecution, the court is concerned only with such ulterior motives as may have prompted the actual commencement of the criminal prosecution, not with threats that a criminal prosecution might be commenced. Be that as it may, decision on this appeal is based on a different ground as set out below.
In Munick v. Durham, 181 N.C. 188, 106 S.E. 665, the evidence was held sufficient for submission to the jury as to the liability of the city for an alleged assault by the superintendent of its water works on a customer then engaged in paying his bill. The basis of decision was that the city, in the operation of its water plant, was acting in a business capacity and not in the exercise of its governmental or police power. The court fully recognized the rule, quoting from McIlhenney v. Wilmington, 127 N.C. 146, 37 S.E. 187, that, in the absence of statute, a city is not liable for the torts of its officers and agents when they are engaged in the performance of a governmental function, a rule applied in the many cases referred to in Rhyne v. Mount Holly, 251 N.C. 521, 526, S.E. 2d .
It was held in McIlhenney v. Wilmington, supra, a leading case, that the city was not liable for an arrest made in a brutal manner *33by a policeman known by city officials to be cruel in making arrests. Clark, J. (later C.J.), said: “The non-liability of municipalities in such cases is based upon the ground that they are subdivisions of the State, created in part for convenience in enabling the State to enforce its laws in each locality with promptness, and simultaneously, when occasion requires it, in the different subdivisions within its boundaries; and that while enforcing those laws which pertain to the general welfare of the State', and to the people generally in all its subdivisions, the State acts through these subdivisions, and uses them and their officers as its, agents for the purposes for which a State government is instituted and granted sovereign power for State purposes; and, further, that the State has not made them the insurers of public or private interests, or liable for any careless or wilful acts of its officers.” Decisions in other jurisdictions are in accord: McIntosh v. City and County of Denver (Colo.), 55 P. 2d 1337; 103 A.L.R. 1509; Swanson v. City of Fort Lauderdale (Fla.), 21 So. 2d 217; Combs v. City of Elizabethton (Tenn.), 31 S.W. 2d 691; McCarter v. City of Florence (Ala.), 112 So. 335; Colwell v. City of Boone (Iowa), 2 N.W. 614.
In the annotation, “Liability of municipality or ox-her political unit for malicious prosecution,” 103 A.L.R. 1512, this statement appears: “It has generally been held that a municipality is not liable for malicious prosecution of criminal actions by its officers.” Examination of the decisions, including those discussed in said annotation, discloses variant factual situations. Too, there is a lack of uniformity as to the ground on which decision is based. Thus, it has been held that where the officers of a city act maliciously and without probable cause in the institution of a criminal prosecution, such acts are beyond the scope of their authority and constitute their personal and individual acts. Doyle v. City of Sandpoint (Idaho), 112 P. 204, 32 L.R.A. (N.S.) 34, Ann. Gas. 1912A, 210; Town of Eagle Point v. Hanscom (Oregon), 252 P. 399. In Taulli v. Gregory (La.), 65 So. 2d 312, the action was to recover for alleged malicious prosecution on the ground that the Mayor and a Councilman of the City of Westwego had instituted with malice and without probable cause, a criminal prosecution against plaintiff for destroying public proberty. The action as to (defendant) City of Westwego was dismissed. The basis of decision is stated in these words: “It is well settled that a municipality is not liable for the tortious acts of its -officers or employees, even when committed in connection with their duties, as such duties are necessarily incident to the exercise of governmental functions by the municipality.” The ground of decision in Taulli v. Gregory, supra, seems more nearly in *34accord with the law in this jurisdiction as declared in MaIlhenney v. Wilmington, supra, and like cases.
Nothing else appearing, we must assume that the powers and duties of the City Manager of Raleigh are those conferred and defined by our General Statutes.
The method of city government known as Plan “D” (G.S. 160-338 et seq.) provides for a city council, which shall elect the mayor from among its own members, in which the government of -the city and the general management and the control of all its affairs shall be vested; and the city council “shall exercise its powers in the manner herein and in article 21 set forth, except that the city manager shall have the authority hereinafter specified.” G.S. 160-339.
G.S. 160-349 provides: “The city manager shall (1) be the administrative head of the city government; (2) see that within the city the laws of the State and the ordinances, resolutions, and regulations of the council are faithfully executed; (3) attend all meetings of the council, and recommend for adoption such measures as he shall deem expedient; (4) make reports to the council from time to time upon the affairs of the city, keep the council fully advised of the city's financial condition and its future financial needs; (5) appoint and remove all heads of departments, superintendents, and other employees of the city.”
Thus, the General Assembly imposed upon -the City Manager of Raleigh, the positive diuty to see that, within the city, the laws of the State are faithfully executed. If, in fact, Carper -had knowledge or information affording reasonable ground for the belief that plaintiff was guilty of embezzlement of tax funds of the City of Raleigh, a violation of the criminal law of the State, it was his statutory duty to take appropriate action for the arrest and prosecution of plaintiff for such crime. We are of the opinion, and so hold, that such action would be in the performance of a governmental function. Under the law as declared in McIlhenney v. Wilmington, supra, and similar cases, the City of Raleigh is not liable for tortious acts, if any, committed by Carper, in connection with the exercise of such governmental function. Since it appears, upon the facts alleged, that Carper’s tortious acts, if any, were committed by him in the exercise of a governmental function and statutory duty under the laws of the State, it follows that plaintiff’s allegation to the effect that the City of Raleigh is liable on the theory that Carper was acting as agent of the City of Raleigh, within the scope of his agency, is an erroneous legal conclusion.
While there are allegations that plaintiff’s counsel by “question*35naires” and by letter notified the Mayor and members of the City Council of plaintiff’s contentions, there is no allegation that the City Council or any of its members took action either to direct or to restrain Carper’s actions. Upon the facts alleged, it appears that the matter was left to, and handled solely by, the City Manager in the course of his duty as “the administrative head of the city government.”
The present appeal requires no discussion as to the sufficiency or significance of the allegations of the complaint in relation to defendant Carper. He is not a party to this appeal.
Since it appears, upon the facts alleged, that plaintiff has no cause of action against the City of Raleigh, the judgment of the court below is affirmed.
Affirmed.
PARKER, J., concurs in result.