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acts being done by the officers of the corporation in an attempt to enforce its police regulations in the interest of the public.

So, too, in La Clef v. Concordia (Kan.) supra, it was held that a city stands in the same catalogue with counties, townships, and other quasi municipal corporations in so far as nonliability for a personal action for injuries resulting from the enforcement of the public laws affecting the state at large is concerned; and a person confined in a city prison, upon a conviction for disturbing the peace and quiet of the city, could not recover from the latter damages for injuries sustained by reason of the bad character of the prison, as a consequence of which he contracted an incurable disease.

The maintenance of a municipal prison is in pursuance of the city's governmental functions, and in so doing the city is but an arm of the state in upholding the public peace and safety, and cannot be held liable either for the nonfeasance or malfeasance of its public officers in the discharge of their governmental functions. Jones v. Corbin (1907) 30 Ky. L. Rep. 374, 98 S. W. 1002.

Applying the well-settled rule of law that municipal corporations are not liable for either negligent omissions or commissions in the performance of duties for which they receive no pecuniary profit, but which are imposed upon them as mere governmental agencies, it was held in Gullikson v. McDonald (1895) 62 Minn. 278, 64 N. W. 812, that a municipal corporation was not liable for negligently maintaining its lockup or prison in such an unfit condition as to impair the health of one confined therein.

And in Eddy v. Ellicottville (N. Y.) supra, it was held that a municipality was not liable for its failure to keep a lockup in suitable condition, even though such failure resulted in the death of one confined therein, as the maintenance of a jail by a municipality is the exercise of a governmental function. And see to the same effect, New Kiowa v. Craven (Kan.) supra.

And in Alvord v. Richmond (Ohio)

supra, it was held that a village was not liable on account of the defective and dangerous condition of the lockup which it provided, and although it was the duty of the village to provide a lockup, yet when engaged in providing it the village was performing a duty for the state, in aiding it to enforce its criminal laws, and was therefore acting as agent of the state, and was not liable for any default of its officers in erecting an unsuitable or unhealthy lockup.

The general rule that a municipal corporation is not liable for damages suffered by prisoners as a result of the unsafe or unhealthy condition of its jails, or for the negligence of its police officers in failing to care properly for the same, prevails in Australia. son v. Young and Davidson v. Walker (N. S. W.) supra.

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The case of Edwards v. Pocahontas (1891) 47 Fed. 268, is contrary to the weight of authority. In that case the court declared that there was a distinction between municipal corporations proper, such as chartered towns and cities, and involuntary quasi corporations, such as counties; and held that, if a municipality having power to maintain a jail, although not required to do so, undertakes to exercise the power, it will be liable for the negligent exercise of it in keeping the jail in such a filthy and unfit condition that the health of the prisoner is injured thereby. This case has been criticized in other jurisdictions which refute the distinction made therein between voluntary and compulsory exercise of the powers of a municipality in regard to the establishment of places of detention, and these cases hold that a difference in the method by which the corporation obtains the legislative powers vested in it cannot change the character of its power, and impose liability for its negligent exercise when the legislature has not expressly provided for such liability.

The cases from North Carolina which may seem to be at variance with the almost universally followed rule that municipalities are not responsible for the negligent maintenance or im

proper construction of prisons may be partly reconciled with the majority view, because of the fact that constitutional and statutory provisions in North Carolina expressly provide for the health and comfort of prisoners in county jails and city police prisons, and by statutory mandate jails are required to be kept clean and prisoners to be furnished with water, food, and bedclothing. And in Lewis v. Raleigh (1877) 77 N. C. 229, a city was held liable for the death of a prisoner resulting from the effects of impure air in an improperly constructed and ventilated jail. However, even in this jurisdiction, as will be seen from a review of the cases set out infra, it seems that the municipality incurs no liability for injuries to the health of its prisoners if it has constructed a reasonably proper jail, furnished to the jailer or the keeper thereof the necessities of life for its prisoners, and exercised a reasonable oversight as to the care and condition of the prison; if these duties have been fulfilled by the municipality it cannot be charged with the negligence of the officers in charge of the jail in allowing the prisoner to suffer.

So, in Nichols v. Fountain (1914) 165 N. C. 166, 52 L.R.A. (N.S.) 942, 80 S. E. 1059, Ann. Cas. 1915D, 152, 8 N. C. C. A. 872, the general principle that municipalities are not liable for the acts of their officers done in performance of purely governmental powers for the benefit of the public at large, and not for their private benefit, is recognized and applied, and in respect to jails and lockups the municipality was held only to the duty of properly constructing and furnishing the prison, and in exercising ordinary care in providing the usual necessaries for the prisoners.

And in Coley v. Statesville (1897) 121 N. C. 301, 28 S. E. 482, the court held that a municipality was liable only for failure properly to construct its prison, or so to furnish it as to afford reasonable comfort and protection from suffering and injury to health.

And having furnished a reasonably comfortable prison, and supplied and

furnished to those in charge of it those things reasonably essential to prevent bodily suffering and to protect health, it is not liable for the failure of the police or keeper of the prison to make use of the means and appliances furnished, unless the municipal authorities, after having notice of such negligence, failed to remedy or prevent the same. Ibid.

Under the constitutional and statutory provisions referred to, supra, it was held in Moffitt v. Asheville (1889) 103 N. C. 237, 14 Am. St. Rep. 810, 9 S. E. 695, that if the aldermen of the city built a reasonably comfortable police prison, and furnished to those who had immediate charge of it everything that was essential to prevent bodily suffering on the part of prisoners, from excessive cold or heat or hunger, and to protect their health, the city would not be liable, even if the suffering or sickness of a prisoner confined therein was caused by neglect of the jailer, the policemen, or the attendants to keep the fires burning all night, or to give the prisoner the necessary bedclothing furnished to prisoners. The court in the instant case expressly noted that the municipality, in the discharge of its judicial duties, could not have incurred any liability in any view of the case but for the express provisions of the Constitution and laws. Referring to the constitutional provision mentioned above, which provides that "it shall be required by competent legislation, that the structure and superintendence of the penal institutions of the state, the county jails, and city police prisons, secure the health and comfort of the prisoners," the court said: "The word 'superintendence' means oversight or inspection, and was intended, as used in the Constitution, to impose upon the governing officials of a municipal corporation the duty of exercising ordinary care in procuring articles essential for the health and comfort of prisoners, and of overlooking their subordinates in immediate control of the prisons (so far, at least, as to replenish the supply of such necessary articles when notified that they are needed), and of employing

such agents and raising and appropriating such amounts of money as may be necessary to keep the prison in such condition as to secure the comfort and health of the inmates." In distinguishing the instant case from that of Lewis v. Raleigh (1877) 77 N. C. 229, in which the municipality was held liable, the court pointed out that in the Lewis Case the prisoner was confined in a narrow cell, located in a cellar under the market house, with no window and no ventilation except a grate in the door that opened on an underground passage, and was opposite a window which was under the grating in the pavement, and observed that it was an impossibility that such a place could "secure health and comfort" in the language of the Constitution, or that it could be "clean" in the language of the statute.

And see also Shields v. Durham (1896) 116 N. C. 394, 21 S. E. 402, holding that a prisoner could not recover from the municipality for injuries to his health from exposure in a prison, where the governing officers of the municipality are not shown to have had actual notice of the absence of window glass in the cell in which the prisoner was confined, or to have been negligent in providing such oversight of the prison as would naturally be expected to give them timely information of its condition, or to have known there was not sufficient bedclothing, or that the policemen were careless and negligent of their duties, or that the fire was not sufficient to keep the prisoner comfortable. In the absence of such negligence the municipality could not be liable if it had constructed a reasonably comfortable prison and furnished it with those things necessary to the health and comfort of the prisoner.

But, where a prison has been for months in a filthy and unfit condition, the municipal authorities will be presumed to have notice thereof, and the municipality will be held liable for injuries to a prisoner resulting therefrom. Later appeal in (1896) 118 N. C. 450, 36 L.R.A. 293, 24 S. E. 794.

And the filthy, wet, and frozen condition of a city prison for several

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they are bound to have knowledge of. And although there are certain duties devolved on ministerial or minor officers of a municipal corporation for reasons of public policy that the corporation will not be held liable for, still it is their duty to give the affairs of the town their personal attention and inspection. And where the city prison has been for months in a terrible, filthy, wet, and frozen condition, with window glass broken out as far back as December, 1892, they are presumed to know it, and will be held responsible, whether they actually know it or not."

And knowledge of municipal authorities as to the bad condition of a city prison, though obtained outside of their official meeting, is sufficient to charge the municipality with liability. for permitting such condition to continue. Ibid.

But one arrested by a police officer for violation of a state law and confined in a city lockup without the authority, express or implied, of the city, cannot recover against the city for damage to his health because of the filthy and unsanitary condition of the lockup. Hobbs v. Washington (1915) 168 N. C. 293, 84 S. E. 391. However, the officer making the arrest and incarcerating the prisoner was held liable, inter alia, for imprisoning the latter in the filthy, unsanitary lockup, without any authority of law.

V. Of municipality for negligence or misconduct of those in charge of pris

oners.

a. Generally. As a general rule a municipal corpo

ration is not liable for injuries to prisoners or convicts resulting from the negligence of the keeper, guard, policeman, or convict boss in charge of them, for the reason that, in the maintenance of a jail and the working of convicts, the municipality is exereising governmental powers and discharging governmental duties, and cannot be held responsible for the negligence or misconduct of officers which it must, of necessity, employ. Colorado. McAuliffe v. Victor (1900) 15 Colo. App. 337, 62 Pac. 231. Georgia. Wilson v. Macon (1892) 88 Ga. 455, 14 S. E. 710; Nisbet v. Atlanta (1895) 97 Ga. 650, 25 S. E. 173.

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North Carolina. Nichols v. Fountain (1914) 165 N. C. 166, 52 L.R.A. (N.S.) 942, 80 S. E. 1059, Ann. Cas. 1915D, 152, 8 N. C. C. A. 872.

Ohio. Alvord v. Richmond (1896) 3 Ohio N. P. 136, 4 Ohio S. & C. P. Dec. 177; Conner v. Cleveland (1878) 4 Ohio Dec. Reprint, 302; Green v. Muskingum County (1901) 23 Ohio C. C. 43; Rose v. Toledo (1903) 24 Ohio C. C. 540.

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(1891) 90 Tenn. 599, 18 S. W. 254. Texas.-Stinnett v. Sherman (1897) - Tex. Civ. App. 43 S. W. 847. Vermont. Carty v. Winooski (1905) 78 Vt. 104, 2 L.R.A. (N.S.) 95, 62 Atl. 45, 6 Ann. Cas. 436, 19 Am. Neg. Rep. 565.

West Virginia. Brown y. Guyandotte (1890) 34 W. Va. 299, 11 L.R.A. 121, 12 S. E. 707.

Thus, in Nisbet v. Atlanta (Ga.) supra, it was held that a municipal

corporation was not liable in damages, for the death of one convicted in a corporation court for the violation of a city ordinance and sentenced to work upon the public streets, although his death was occasioned. while he was engaged in such work, by negligence on the part of the foreman who had been placed by the municipal authorities in charge thereof, and by his failure to provide the convict, after his injury, with the proper medical attention and treatment. The court pointed out that neither the law of master and servant nor the doctrine of respondeat superior applies in a case where a prisoner undergoing punishment for the infraction of a municipal ordinance is injured or killed as a consequence of the negligence or misconduct of the officer having the custody or control of such prisoner; and this is true because, in such matters, the municipality is exercising governmental powers and discharging governmental duties, in the course of which it, of necessity, employs the services of the officer in question.

In Bartlett v. Paducah (1906) 28 Ky. L. Rep. 1174, 91 S. W. 264, it was held that one who is injured by indignities inflicted upon him by the officials who have him in charge, while working out a fine on the streets of a city for violation of an ordinance, should bring his action against the offending officials, and not against the city.

And in Jackson V. Owingsville (1909) Ky. 25 L.R.A. (N.S.) 180, 121 S. W. 672, it was held that a convict breaking stone for a municipality could not hold it liable for injury to him by a splinter from a tool handled by another convict, although the defective condition of the tool which caused the splinter to fly was due to the negligence of the municipal officers. The court observed that the municipality, in enforcing the criminal laws of the state and city, is the agent of the state, and is not responsible for the tortious or negligent acts of its officers while so engaged.

And in Curran v. Boston (Mass.)

supra, it was held that a city was not liable for injuries to a misdemeanant resulting from the negligence of officers of a workhouse established purely for the public service, and to assist in the performance of its public duty of supporting paupers and criminals, even though the establishment was voluntarily erected and maintained; and the fact that some revenue is derived by the city from the labor of the inmates is immaterial if the institution is not conducted with a view to pecuniary profit, and none in fact is obtained. And this is especially true where the officers of the institution are appointed by an independent board, which board is invested with certain powers by statute, and subject to certain ordinances not inconsistent with the statute, as to the performance of their duties, but which is nevertheless an independent body, and not an agent of the city, nor performing any duties as such.

And in Ulrich v. St. Louis (Mo.) supra, a city was held not liable for injuries suffered by one working out a fine in the city workhouse when he was required by the superintendent of the workhouse to hitch to a vehicle a mule of known vicious propensities. The court said: "In this case the city of St. Louis was simply in the exercise of its public, governmental functions delegated to it by the state, from the time the first arrest was made until the injury occurred, in enforcing its ordinances enacted to preserve the peace, safety, and good order of society, and it is no more liable for the negligence of its officers in this respect, than the state would be liable for the negligence of its highest officers in the performance of the same class of duties."

And in Conner v. Cleveland (1878) 4 Ohio Dec. Reprint, 302, it was held that a city was not liable to a convict in the municipal workhouse who was injured when forced to work on a machine which was unsafe and dangerous.

So, also, in Green v. Muskingum County (1901) 23 Ohio C. C. 43, it was held that one confined in a workhouse on an order of commitment from the

mayor's court of the city, and who was injured while working, as he alleged, on a defectively constructed machine in the workhouse, could not recover from the municipality, as the power conferred on municipalities to preserve the peace and protect persons and property by the arrest of offenders, and by their commitment and detention in jails and workhouses, is of a public or governmental nature, in which the sovereign state exercises its functions through the agency of the municipality; and in such case the nonliability of the municipality rests upon the same reason as does that of the sovereign exercising like powers.

In Rose v. Toledo (1903) 24 Ohio C. C. 540, it was held that a city was not liable for injuries to the health of a convict in its workhouse, occasioned by his being locked for six days, by order of the superintendent, in an unhealthy, unsanitary, and damp dungeon, for a violation of the rules of the workhouse, since the city, in maintaining the workhouse, was acting in its governmental capacity, for the state, for the preservation and maintenance of order, in the punishment of offenders against law, and not acting in its corporate capacity.

And in Kelley v. Cook (1898) 21 R. I. 29, 41 Atl. 571, 5 Am. Neg. Rep. 94, it was held that a city was not liable for the death of one who, while confined in the city police station, became ill and was neglected, since the city, in the care of persons arrested, is aiding in the enforcement of law and discharging a public duty for which it receives no pecuniary benefit. The court said: "Of course it is to be presumed that the common dictates of humanity will prompt those in charge of the municipal affairs of a city to properly provide for persons under arrest; but that it should be held liable to an action in favor of a person who has been arrested, whether rightfully or wrongfully, on the ground that he has not received proper care and attention, is a doctrine which has not yet been incorporated into our municipal law."

In Detroit v. Laughna (1876) 34 Mich. 402, it was held that the city of

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