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 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 months is presumed to be within the knowledge of the authorities. Shields v. Durham (118 N. C. 450) supra. The court said in the instant case: "The general rule is that knowledge of the agent is knowledge of the principal. .. The doctrine is held not to apply in certain conditions as to minor officers of municipalities. . . But this rule cannot protect them where they have provided a place of imprisonment which is so badly constructed that a prisoner cannot be reasonably comfortable. . . . This 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 Kentucky. Bartlett v. Paducah (1906) 28 Ky. L. Rep. 1174, 91 S. W. 264; Jackson v. Owingsville (1909) Ky., 25 L.R.A. (N.S.) 180, 121 S. W. 672; Morgan v. Shelbyville (1909) - Ky. —, 121 S. W. 617. Massachusetts. Curran v. Boston (1890) 151 Mass. 505, 8 L.R.A. 243, 21 Am. St. Rep. 465, 24 N. E. 781. Missouri. Ulrich v. St. Louis (1892) 112 Mo. 138, 34 Am. St. Rep. 372, 20 S. W. 466. -- 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. Rhode Island. Kelley v. Cook (1898) 21 R. I. 29, 41 Atl. 571, 5 Am. Neg. Rep. 94. Tennessee. Davis v. Knoxville (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 v. 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 muThe court observed nicipal officers. 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 Detroit was not civilly liable for the misconduct of the officers of the Detroit House of Correction toward convicts, inasmuch as the government of the prison was, by statute, under the control of a board of inspectors with whose management of the prison the common council had no authority to interfere. In Royce v. Salt Lake City (1897) 15 Utah, 401, 49 Pac. 290, it was held that where a city had no power to compel its prisoners to work, it was not liable to one set to work by the jailer to break rock, during which he was injured by being struck in the eye by a piece of rock broken by a fellow prisoner, since the jailer, in requiring the plaintiff to work breaking stone at the time he was injured, was acting ultra vires. However, in the reported case (HILLMAN V. ANNISTON, ante, 89) by a four to three decision, the court held that a municipality was liable for the death of a convict working out a sentence on the streets of a city for violation of an ordinance, and who, while so doing, was killed as a result of the brutality of a guard in charge. The majority of the court took the view that the prisoner was working on an enterprise corporate in its character, and that, under such circumstances, it would be unjust to deny a recovery because the injured person was a convict, where at the same time a recovery would be allowed for injury to a third person free to avoid injury, or an employee who voluntarily engages in the service. - In Dube v. Montreal (1912) Quebec, 7 D. L. R. 87, the city was held liable for the death of a helplessly drunk prisoner injured by falling while being conducted downstairs to the jail, on account of negligence of the constables in not supporting him properly while conducting him downstairs. The prisoner offered no resistance, and was guilty of no contributory negligence. And in Johnson v. Municipality No. 1 (1850) 5 La. Ann. 100, a municipality was held liable for the negligence of the keeper of a jail in failing to advertise the detention of a slave in the official gazette of the municipality in which the jail was situated, and in failing to furnish medical attention or the necessities of life to a sick slave who was confined in the jail and who died as a result of the lack of attention. b. For injury to prisoner resulting from the burning of the prison. A municipal corporation is not liable for injuries to a prisoner from the burning of its jail, lockup, or calaboose, even though the fire may have been due to the negligence of the officers in charge of the prison, or even though the injury resulting from the fire were attributable to the negligence of these officers. McAuliffe v. Victor (1900) 15 Colo. App. 337, 62 Pac. 231; 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; Alvord v. Richmond (1896) 3 Ohio N. P. 136, 4 Ohio S. & C. P. Dec. 177; 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; Brown v. Guyandotte (1890) 34 W. Va. 299, 11 L.R.A. 121, 12 S. E. 707; McKenzie v. Chilliwhack (1909) 15 B. C. 256, affirmed in [1912] A. C. (Eng.) 888, 8 D. L. R. 692, Ann. Cas. 1913B, 1278 P. C. Thus, in McAuliffe v. Victor (Colo.) supra, the court held that a city was not liable for injuries to a person confined in the city jail, caused by the burning thereof due to the negligence of the city officials. In holding the city absolved from liability, the court took the view that the maintenance of a jail is the exercise by the municipality of judicial or governmental power, and the municipality would not be liable for injuries caused by the negligent acts of their public officers in the execution of such powers. And 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, supra, it was held that a small rural village was not liable for the death of a prisoner because of the act of its officer in placing him in a cell in a wooden building, without watchman or guard, while so intoxicated that he could not help himself, because of which he was burned to death by the accidental burning of the building. And in Alvord v. Richmond (1896) 3 Ohio N. P. 136, 4 Ohio S. & C. P. Dec. 177, it was held that a village was not liable for the carelessness and negligence of its officers and agents in building a fire in a worn-out and cracked stove in the village lockup, whereby it took fire and incinerated a prisoner confined therein without any means of escape. So, too, in 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, a municipal corporation was held not liable for the death of one confined in a lockup maintained by it, who was suffocated and killed by the smoke from a mattress which became ignited from some unknown cause, and without the fault of the intestate, as the maintenance by a municipal corporation of a lockup or jail for the confinement of persons under arrest is a governmental function for negligence in the performance of which it is not liable to persons injured. In McKenzie v. Chilliwhack (B. C.) supra, a small rural village which, pursuant to its statutory duty, had erected a lockup, was not liable for the death of a drunken prisoner confined herein who had been searched and matches taken from him, and who was burned to death by fire of unknown origin in his cell during the temporary absence of the jailer, who had left the prison to attend to his duty of lighting the street lamps. c. For injury to prisoner by assault of other prisoners. A municipal corporation is not liable for an assault committed by one prisoner upon another prisoner, even though the incarcerating officer or person in charge of the prison negligently confined the assaulting prisoncr in a cell or room with a prisoner whom he knew to be violent and likely to make an assault. Doster v. Atlanta (1884) 72 Ga. 233; Wilson v. Macon (1892) 88 Ga. 455, 14 S. E. 710; Morgan v. Shelbyville (1909) Ky. 121 S. W. 617; Davis v. Knoxville Tex. (1891) 90 Tenn. 599, 18 S. W. 254; A municipal corporation is not liable for personal injuries sustained by one prisoner at the hands of another confined in the same cell or room of the city prison, notwithstanding the police officer who arrested the plaintiff and put him in prison may have been guilty of wrong or negligence in confining him with an intoxicated fellow prisoner, who was on that account violent and dangerous. Wilson v. Macon (1892) 88 Ga. 455, 14 S. E. 710. And in Morgan v. Shelbyville (1909) Ky. —, 121 S. W. 617, in an action by one confined in a city guardhouse to recover from the city for an assault upon him by fellow prisoners, the complaint alleging that the city was negligent in failing to provide a suitable keeper or guard at the house where he was imprisoned, the court held that the rule as to the nonliability of a city for the negligence of its officers was not changed by the fact that all fines which were imposed by the city court for violations of ordinances of the city were, by virtue of statute, covered into the city's treasury, rather than paid over to the state. Upon the ground that the city, in maintaining its jail, was engaged in the discharge of a public duty as an arm of the state, it was held in Davis v. Knoxville (1891) 90 Tenn. 599, 18 S. W. 254, that a city was not liable for an assault on a prisoner at the hands of another confined in the same cell or room of the city jail, although the city's servant in charge of the jail was negligent in confining him with. the aggressor, who was known to be violent and quarrelsome. VI. Of the state and public institutions. The doctrine of respondeat superior is not applicable to a state, and the latter is not liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers or agents, unless it voluntarily assumes liability in such a case. Thus, in Clodfelter v. State (1882) 86 N. C. 51, 41 Am. Rep. 440, the court reiterated the well-known rule that |