Page:Parish v. Pitts, 244 Ark. 1239 (1968).pdf/6

1244 of judgment and discretion by the municipality for the good of the whole, no action would lie for injuries resulting therefrom, but that for the negligent performance or execution of the orders of such a public body, suit would lie. This reasoning was followed in Mayor of Helena et al v''. Thompson'', 29 Ark. 569 (1874), and liability was imposed upon the City for the negligent construction of an inadequate ditch and culvert which served to divert a flowing stream.

Yet, in Trammel v''. Town of Russellville'', 34 Ark. 105 (1897), without mentioning the Willis and Thompson cases, supra, this Court held that a municipality is liable in tort only if the activity engaged in was solely for financial gain or "proprietary" in nature, but if the activity causing the injury was in the interest of the public generally, it is "governmental" and the city is immune to suit and liability. In 1931, in City of Little Rock v. Holland, 184 Ark. 381, 42 S. W. 2d 383, the decisions in this field were reviewed, the oversight of the Willis and Thompson cases, supra, in the Trammell decision, supra, was noted. Still the Court concluded that a municipality is not liable for its nonfeasance, nor for the negligence of its officers and agents in the performance of a governmental function. Thus by implication the earlier Arkansas cases imposing liability on municipalities for negligence in the performance of ministerial acts were overruled. This rule has been followed to the present with little discussion until the opinion given in Kirksey v. City of Fort Smith, supra. In applying the governmental-proprietary test, Arkansas has held that the maintenance of city streets, Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949 (1955); law enforcement activity, Franks v. Town of Holly Grove, 93 Ark. 250, 24 S. W. 514 (1910); the operation of municipal waterworks, Patterson v. City of Little Rock, 202 Ark. 189, 149 S. W. 2d 562 (1941); operation of an electrical distribution system, City of Little Rock v. Holkund, supra; and the maintenance of a municipal swimming pool, Yoes v. City of Fort Smith, 207