concurring. I heartily agree with the majority in the soundness of this judg*172ment. I as heartily disagree upon the grounds of the Judgment.
/Probably no case has been before this court in years that touches as closely as does this case the primary and paramount purpose of the American government.
For centuries there have been three schools of political thought, finding concrete expressions, generally in modified form, in some one or more of the nations of the.world.
The autocratic form of government, which is one of the oldest and most universal, especially in earlier days, is well personified by the great Louis XIV of France, who presided over the destinies of that nation in the 17th century. The prevailing policy of his administration, as by himself declared, was:
“I am the state. * * * Kings are absolute lords; to them belongs naturally the full and free disposal of all property of their subjects, whether they be churchmen or laymen. For subjects to rise against their prince, however wicked and oppressive he may be, is. always infinitely criminal. God, who has given kings to men, has willed that they should be revered as his lieutenants, and has reserved to himself alone the right to review their conduct. His will is that he who is born a subject should obey without question.”
It will be observed from this creed of Louis XIV* that the individual was completely eliminated. His chief duty was to “revere his lord” and “obey without question."
*173The communistic form of government, or its more modern style bolshevism, or radical socialism, makes men in the mass the sovereign power and eliminates the individual man from all consideration as effectually as does autocracy. The individual man is merely like one of the ants in the hill, merely an atom in the political world. There .is neither room, occasion nor desire for individual initiative, enterprise or achievement, save the dead level of the mediocre.
In both these forms of government the individual man is the very last consideration, and that only to please the autocrat upon the one hand or the community upon the other.
The third school, typified by the American democracy, is founded upon an entirely different principle. The great Magna Charta of American democracy is concededly the Declaration of Independence. The immortal Jefferson wrote these immortal words:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
Now, when a truth is “self-evident,” it is. unnecessary to either argue for it or against it, or attempt further to demonstrate it. At all events these truths have become self-evident in the history of American democracy.
*174What are these truths as Jefferson enumerates them?
1. The unalienable rights of men, among which are “life, liberty and the pursuit of happiness.”
2. That governments are instituted “to secure these rights.”
3. That these rights are best secured by governments “deriving their just powers from the consent of the governed.”
Under the American system the individual is the primary and paramount consideration, as conceived and declared by Jefferson and his school, and likewise those who have followed in his footsteps.
This was. the doctrine of Abraham Lincoln and those who have followed in his footsteps, for in my judgment Lincoln was the greatest interpreter and the greatest follower of Jeffersonian democracy, and it may be observed that Abraham Lincoln quoted Thomas Jefferson more than he quoted all other American statesmen combined.
Under American democracy, as declared by Jefferson and interpreted by Lincoln, the individual’s rights, were ever to be safeguarded and secured by government, federal, state and local.
The Constitution of Ohio, in the Bill of Rights, as adopted in 1851 and still in force (Section 16, Article I), contained the language:
“And every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.”
*175This is a reaffirmation of .the Jeffersonian doctrine of the Declaration of Independence, written into the Constitution of Ohio by our early fathers.
. It will be observed that there is no qualification or limitation as to these rights or as to a redress when these rights are violated. When the individual receives the injury comprehended within the above provision of the Bill of Rights, he shall have “remedy” by due process of law. That constitutional grant and guaranty is so plain and persuasive that it does not lie. in the power of any state legislature or court to disregard or nullify it.
The judgments below in the case at bar which denied the plaintiff the right to recover as a matter of law were based on the Frederick case, 58 Ohio St., 538.
The syllabus in that case reads:
“A municipal corporation is not, in the absence of any statutory provision, liable in damages to one injured by the negligent acts of its fire department, or any of its members,” etc.
An examination of the opinion sustaining above syllabus shows an entire absence of any consideration whatever of said Section 16 of the Bill of Rights.
,The opinion further discloses an entire absence of reference to the old statute that has been in. force in Ohio for many years making a-municipal corporation “a body corporate” with the right “to sue and be sued.”
It is striking strange indeed that the opinion should be silent as to both of these important propositions, the one constitutional, the other *176statutory. If the doctrine of the syllabus is sound, then the existence of such a 'statute called for an exactly contrary judgment.
The whole doctrine of immunity given to a? sovereign state was based upon the assumption of the divine right of kings — a king can do no wrong, he is infallible, or, if he do wrong, no subject has any right to complain. This doctrine has been shot to death on so many different battle-; fields that it would seem utter folly now to resur-j rect it, even by the judgment of a court of last; resort.
The Declaration of Independence makes no exception in favor of governmental sovereignty. Indeed governmental sovereignty denying natural rights was the very basis of that Declaration. The Constitution of Ohio, Section 16, Bill of Rights, makes, no exception in favor of governmental sovereignty. It is as broad and comprehensive as language can make it, and right and remedy run to the individual who has been injured.
The injury, therefore, is the primary and paramount consideration, no matter by whom said injury is inflicted. When the injury is inflicted the right to sue ripens, the courts are open, and as to those political subdivisions of the state that have been for a long time recognized as capable of suing and being, sued there can be no reasonable question longer raised as to their liability for their wrongs committed against the individual’s rights as declared and defined by constitutional guaranties.
If the government of the United States and the government of the states and the various political *177subdivisions thereof are to be perpetuated by well-settled and well-directed public opinion, it will be because the unalienable personal rights of man are protected and promoted in accordance with our constitutional guaranties. It is our only escape from autocracy upon the one hand, and bolshevism, communism or the teachings of radical schools of socialism upon the other.
I complain, however, of the majority opinion chiefly upon the ground that it is predicated upon the claim that'the act of the municipal corporation pleaded as negligence was a “ministerial act.” I cannot quite regard the act of a fire department, a waterworks department, a police department, a health department, or any other governmental department, dealing with the very essential purpose of such department, which directly and vitally affects the life, limb and property of the people of a city, as being a mere “ministerial” act. It is as much a governmental function as the exercise of any other police power is a governmental function.
Government is a growth, necessarily so, and every new field of public duty it invades it so does in the exercise of a governmental function, and if in the exercise of such function it invades or violates personal rights granted and guaranteed by the constitution then it must in such case respond in damages for the right so violated.
After all, in the case at bar, there is nothing new in principle in holding municipalities liable for their negligence. For many years municipalities have been held liable for their failure to keep their *178streets and sidewalks open, safe for travel, and free from nuisance. Many cases may be cited in support of this doctrine, and it cannot be denied that the care of the streets is a governmental function, and surely it would not be claimed that the care of the streets, vital and important as it is to municipal life and activity, is a “ministerial” act. It is as much a governmental function as any other municipal act possibly could be.
Indeed the case at bar belongs to the same family of nuisances in the public streets as those in which municipalities have heretofore been held liable. What could be a greater nuisance than the careless and negligent running of a motor hose-truck at a great rate of speed in a public square, where hundreds of people are going about, where they have a lawful right to be, without warning and without opportunity to avoid the danger of collision with a motor truck? It may be the worst kind of a nuisance, the mos.t dangerous to life and limb, as it proved to be in the case at bar.
Reason and righteousness both demand that in such a case, where the proper facts are pleaded and proven, there should be a liability fixed against the municipality.
For many years, also, the municipality in the exercise of its function for the change of grade of streets has-recognized the right of abutting* property owners for damages for such change of grade. Yet the change of the grade was the exercise of a governmental function in the improvement and development of the city.
*179In the exercise of the right of eminent domain, in order to carry out some police power in the municipality, certain specific real property is appropriated by condemnation proceedings. Now if the constitution so permitted, the inherent powers of government would no doubt permit the taking of such property without compensation, but realizing the equities of the case in the property owner the constitution safeguards that right by providing that compensation shall be made to the owner of the property, when taken for public use, and the compensation is raised by taxation over the entire community, all contributing. In principle why should there be any difference when human life is taken in the exercise of some governmental function? As to the taking of the property there is no negligence, there is no wrong, but compensation nevertheless is made. As to the taking of life there is negligence, there is wrong, and why should satisfaction not be made for such wrong?
» Nineteen centuries and more ago the Man of "¡Galilee announced the doctrine that the Sabbath Was made for man and not man for the Sabbath. So Jefferson announced in the Declaration of Independence that government was made for man and not man for government, and it is the primary and paramount purpose of our American system of democracy to promote and protect these constitutional policies of the fathers as defined and guaranteed in our national and state Bill of Rights.