O’Hara, J.
This case requires the interpretation of PA 1951, No 59.1 At the time of the enactment thereof Michigan recognized the broad concept of governmental immunity from tort liability. As to political subdivisions of the sovereignty it recognized also the distinction between “governmental” and “proprietary” functions. There were additionally specified areas in which even the State itself was legislatively rendered liable for its negligence. The foregoing resume of the then extant case and statutory law is relevant to an examination of the legislative intent at the time of the passage of the statute concerned. The involved provisions of the act read:
[50]*50“Sec. 1. In case an action is brought against a policeman of a political subdivision of this State for torts, # * * while such policeman is engaged in the performance of his duties * * * the political subdivision * * * may indemnify such policeman for any judgment recovered against such policeman.
“Sec. 2. * * * That such political subdivision shall not be made a party to any such action.”
The legislative intent seems to us to be clear. The legislature recognized that a police officer was personally liable for his personal torts committed in the course of his employment. The political subdivision was not liable for the tort of the police officer on the theory of respondeat superior, because the agency doctrine related a tortious act to it, for which it could not be compelled to respond because of its governmental immunity. No authority we know of classified a police officer’s duty as “proprietary” in nature. A tortiously injured person was therefore in the position, upon the requisite showing, of obtaining a valueless judgment against a more often than not impecunious and execution-proof policeman. The legislature therefore without rendering the political subdivision liable in law, empowered it, in its discretion, to indemnify the officer against any judgment recovered against him.
We think the prohibition was directed against a presumed tendency of a jury to return a larger verdict against a public corporation than against a policeman only. Whatever the wisdom, efficacy, soundness, or lack thereof, in this theory, it is not our concern. That determination abides in the legislature. It seems obvious to us that primary intent of the enactment was to authorize, discretionarily, the expenditure of public moneys for an otherwise unauthorized purpose, namely, the reimbursement of a police officer for a judgment rendered against him [51]*51personally for which, the political subdivision could not he held liable. However, as courts made the law of governmental immunity, those same courts can “unmake” it. This Court, by majority vote, did so in Williams v. City of Detroit, 364 Mich 231. Because of the numerical division of the Court in that case, the effect of the decision on the statute herein mentioned may he unclear. Certainly so it seems from the briefs of the parties hereto and the ruling of the trial judge.
In this case plaintiff brought an action against a police officer and the municipal corporation of Marine City, naming it as a defendant. The declaration alleged use of excessive force in his arrest, claimed injury therefrom and sought damages. Defendant city moved to dismiss as to it on the authority of the statute here involved. The trial court in a single sentence opinion found that “this matter is covered by CLS 1961, § 124.101 (Stat Ann 1958 Rev § 5.3376 [1]), and therefore, defendant, city of Marine City’s motion to dismiss is hereby granted.” The trial judge did not choose to discuss the effect of Williams, supra, and Wardlow v. City of Detroit, 364 Mich 291, decided the same day, upon the statute. Appellant says he should have, since the cases he urges are determinative of the issue here.
Appellee contrariwise says the statute controls. Further it contends that even if the court had considered the cases their effect is not what appellant contends for, namely, that defendant city no longer enjoys governmental immunity; ergo it should not be continued as a party defendant; ergo the trial judge was right in dismissing as to it. To determine these questions, it is first necessary to dissect Williams. Plaintiff there brought an action against the city of Detroit, Joseph Wolff and Mark Roberts, commissioner and inspector, respectively, of the city’s department of buildings and safety engineering. The [52]*52suit was based on the negligent failure to safeguard an open elevator shaft. Defendant city moved to dismiss as to it on the ground that the building involved was used solely for a governmental purpose, and in consequence it enjoyed immunity from tort liability in connection with the building’s maintenance. The trial judge granted the motion. All of the opinions in the case agree that no issue of “proprietary” function was involved. What did the 3 opinions decide?
First, and irrelevantly here, the decision affirmed the action of the trial judge in that case because 4 Justices voted for affirmance; Chief Justice Carr was joined in his vote by Justices Kelly, Dethmers, and Black. Four Justices voted to reverse; Justice Edwards was joined in his opinion by Justices Talbot Smith, Kavanagh, and Souris.
Justice Black’s opinion must be considered separately, however. His vote for affirmance was, first, a protest against the Edwards’ opinion limiting the overruling of “the judicial doctrine of governmental immunity” to the Williams’ Case and to causes of action accruing after that opinion day, September 22, 1961. Second, Justice Black limited the overruling in that case to municipal corporations. Thus, while his vote was cast to affirm the trial judge in that case, it was cast to repudiate governmental immunity as to municipal corporation. The minimal result of Williams, therefore, was properly head-noted by the experienced reporter, Hiram C. Bond, as follows:
“Judgment for municipal corporation, as owner of building which it used in the performance of municipal purposes, holding it not liable for fatal injuries sustained by employee of moving company, which had been engaged to move furniture from building, who fell down unguarded opening between elevator [53]*53floor and' side of shaft,, is affirmed by an ’ equally divided court.
“The judicial doctrine of governmental immunity from liability for ordinary torts is overruled by the Supreme Court, prospectively from this date except for the instant case, per Smith, Edwards, Kavanagh, and Souris, JJ., such overruling to be wholly prospective and limited to municipal corporations, per Black, J.”
Incontestably, therefore, as of September 22,1961, Marine City lost its governmental tort immunity as to causes of action accruing after that day. The cause of action here asserted accrued October 6, 1961. The permissive statute allowing political subdivisions to indemnify police officers for judgments rendered against them, and the condition of non-joinder of the political subdivision, lost the basis for its clear legislative intent as of the date of the decision in Williams. The evil (if indeed it were one) against which the statute was directed could no longer eventuate.
The defendant city no longer enjoyed the immunity from the effect upon it of the alleged tortious act of its agent-servant, the police officer.
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O’Hara, J.
This case requires the interpretation of PA 1951, No 59.1 At the time of the enactment thereof Michigan recognized the broad concept of governmental immunity from tort liability. As to political subdivisions of the sovereignty it recognized also the distinction between “governmental” and “proprietary” functions. There were additionally specified areas in which even the State itself was legislatively rendered liable for its negligence. The foregoing resume of the then extant case and statutory law is relevant to an examination of the legislative intent at the time of the passage of the statute concerned. The involved provisions of the act read:
[50]*50“Sec. 1. In case an action is brought against a policeman of a political subdivision of this State for torts, # * * while such policeman is engaged in the performance of his duties * * * the political subdivision * * * may indemnify such policeman for any judgment recovered against such policeman.
“Sec. 2. * * * That such political subdivision shall not be made a party to any such action.”
The legislative intent seems to us to be clear. The legislature recognized that a police officer was personally liable for his personal torts committed in the course of his employment. The political subdivision was not liable for the tort of the police officer on the theory of respondeat superior, because the agency doctrine related a tortious act to it, for which it could not be compelled to respond because of its governmental immunity. No authority we know of classified a police officer’s duty as “proprietary” in nature. A tortiously injured person was therefore in the position, upon the requisite showing, of obtaining a valueless judgment against a more often than not impecunious and execution-proof policeman. The legislature therefore without rendering the political subdivision liable in law, empowered it, in its discretion, to indemnify the officer against any judgment recovered against him.
We think the prohibition was directed against a presumed tendency of a jury to return a larger verdict against a public corporation than against a policeman only. Whatever the wisdom, efficacy, soundness, or lack thereof, in this theory, it is not our concern. That determination abides in the legislature. It seems obvious to us that primary intent of the enactment was to authorize, discretionarily, the expenditure of public moneys for an otherwise unauthorized purpose, namely, the reimbursement of a police officer for a judgment rendered against him [51]*51personally for which, the political subdivision could not he held liable. However, as courts made the law of governmental immunity, those same courts can “unmake” it. This Court, by majority vote, did so in Williams v. City of Detroit, 364 Mich 231. Because of the numerical division of the Court in that case, the effect of the decision on the statute herein mentioned may he unclear. Certainly so it seems from the briefs of the parties hereto and the ruling of the trial judge.
In this case plaintiff brought an action against a police officer and the municipal corporation of Marine City, naming it as a defendant. The declaration alleged use of excessive force in his arrest, claimed injury therefrom and sought damages. Defendant city moved to dismiss as to it on the authority of the statute here involved. The trial court in a single sentence opinion found that “this matter is covered by CLS 1961, § 124.101 (Stat Ann 1958 Rev § 5.3376 [1]), and therefore, defendant, city of Marine City’s motion to dismiss is hereby granted.” The trial judge did not choose to discuss the effect of Williams, supra, and Wardlow v. City of Detroit, 364 Mich 291, decided the same day, upon the statute. Appellant says he should have, since the cases he urges are determinative of the issue here.
Appellee contrariwise says the statute controls. Further it contends that even if the court had considered the cases their effect is not what appellant contends for, namely, that defendant city no longer enjoys governmental immunity; ergo it should not be continued as a party defendant; ergo the trial judge was right in dismissing as to it. To determine these questions, it is first necessary to dissect Williams. Plaintiff there brought an action against the city of Detroit, Joseph Wolff and Mark Roberts, commissioner and inspector, respectively, of the city’s department of buildings and safety engineering. The [52]*52suit was based on the negligent failure to safeguard an open elevator shaft. Defendant city moved to dismiss as to it on the ground that the building involved was used solely for a governmental purpose, and in consequence it enjoyed immunity from tort liability in connection with the building’s maintenance. The trial judge granted the motion. All of the opinions in the case agree that no issue of “proprietary” function was involved. What did the 3 opinions decide?
First, and irrelevantly here, the decision affirmed the action of the trial judge in that case because 4 Justices voted for affirmance; Chief Justice Carr was joined in his vote by Justices Kelly, Dethmers, and Black. Four Justices voted to reverse; Justice Edwards was joined in his opinion by Justices Talbot Smith, Kavanagh, and Souris.
Justice Black’s opinion must be considered separately, however. His vote for affirmance was, first, a protest against the Edwards’ opinion limiting the overruling of “the judicial doctrine of governmental immunity” to the Williams’ Case and to causes of action accruing after that opinion day, September 22, 1961. Second, Justice Black limited the overruling in that case to municipal corporations. Thus, while his vote was cast to affirm the trial judge in that case, it was cast to repudiate governmental immunity as to municipal corporation. The minimal result of Williams, therefore, was properly head-noted by the experienced reporter, Hiram C. Bond, as follows:
“Judgment for municipal corporation, as owner of building which it used in the performance of municipal purposes, holding it not liable for fatal injuries sustained by employee of moving company, which had been engaged to move furniture from building, who fell down unguarded opening between elevator [53]*53floor and' side of shaft,, is affirmed by an ’ equally divided court.
“The judicial doctrine of governmental immunity from liability for ordinary torts is overruled by the Supreme Court, prospectively from this date except for the instant case, per Smith, Edwards, Kavanagh, and Souris, JJ., such overruling to be wholly prospective and limited to municipal corporations, per Black, J.”
Incontestably, therefore, as of September 22,1961, Marine City lost its governmental tort immunity as to causes of action accruing after that day. The cause of action here asserted accrued October 6, 1961. The permissive statute allowing political subdivisions to indemnify police officers for judgments rendered against them, and the condition of non-joinder of the political subdivision, lost the basis for its clear legislative intent as of the date of the decision in Williams. The evil (if indeed it were one) against which the statute was directed could no longer eventuate.
The defendant city no longer enjoyed the immunity from the effect upon it of the alleged tortious act of its agent-servant, the police officer. It could be sued, named as a defendant, and compelled, upon requisite showing of agency, injury, and damage, to respond.
This, appellee says, may very well be, ■ but "the decision in Williams is limited additionally to “ordinary” torts, and this tort asserted is not any “ordinary” tort. This tort, it claims, is within Justice Edwards’ limiting language (p 260):
“We deal in this case with a declaration which would clearly state an ordinary tort claim against a private individual or a private corporation. Our holding herein is limited to the statement that there is no longer any judicial doctrine of .governmental [54]*54immunity as to such a claim.” (Emphasis by Justice Edwards.)
Appellee’s theory is that because Williams excluded “discretionary” acts, and that since a police officer has discretion as to whom he will arrest, for what reason the arrest will be made, and how much force will be used, his action is a “discretionary” one. The theory is untenable. The type of discretion contemplated in Williams is carefully defined (p 261):
“There are and will, continue to be many situations in- relation to which real or fancied grievances exist where governmental freedom from liability will persist qn wholly different grounds. * * * The instant case, a tort action, does not in any manner alter the fact that actions or decisions of a legislative, executive, or judicial character which are performed within the scope of authority'of the governmental body or officer concerned continue to enjoy freedom from liability.
“The people place great powers of decision making in the hands of their government. In the exercise of discretionary power, governmental duty runs to the benefit of the whole public, rather than to individuals. It is of great importance that this crucial function of democratic decision making be unhampered by litigation.”2 (Emphasis supplied.)
[55]*55We think it unnecessary to expatiate on.the point. The action of a police officer in making an arrest cannot be considered within the broad scope of the discretion allowed a free government in its legislative, executive, or judicial branch.
Appellant urges that our decision in Wardlow v. City of Detroit, 364 Mich 291, is controlling. Appel-lee urges that in Wardlow the Court did not consider the statute here involved relating specifically to an action against a police officer, even though in that case the action was against the municipal subdivision and 18 of its police officers.
It is true that the opinions in Wardlow are truncated. They do not answer with certainty appellee’s contention. There is room, from Justice Black’s reference to the date of the accrual of the cause of action in that case, to conclude that it was on that ground only that decision was made, since the majority concurred only “in affirmance.”
Irrespective of the ground upon which the Court decided the motion to dismiss in Wardlow, we here now hold that the statute relied upon by the trial court is not authority for his action. This is for the reasons herein first discussed as to the legislative intent as necessarily construed under the law as it existed, at the time of the enactment of the cited statute. Since the statute was enacted before Williams it can hardly be urged that the legislature passed it with the decision of Williams in mind. ■ It is no longer to be recognized as authority for. prohibiting the naming as a defendant a political subdivision in an action against a police officer thereof. A necessary caveat: Though actions against .munici[56]*56palities may now be maintained on the basis of the tortious acts of its police officers, this is not to say that every malefactor, or recalcitrant arrestee, may only be apprehended and confined "pursuant to an engraved invitation complete with R.S.Y.P. Police officers still may and must exert the reasonable force necessary to perform their important duty to society.
The order granting the motion to dismiss is vacated. The ease is remanded to the trial court with instructions to reinstate the municipality as a party defendant. No costs are allowed as we construed a statute.
Kavanagh, 0. J., and Sotjris, Smith, and Adams, JJ., concurred with O’Hara, J.
Black, J., concurred in result.