function are not prescribed by law, if the function is a public or governmental one, so that the municipality derives no profit or advantage from its performance, it is not responsible for the negligence of its officers in respect to this function, and the rule of respondeat superior has no application. 19 R. C. L. 1107.

II. Of county for unsanitary or improper condition of jail.

The courts are unanimous in holding that a county is not liable for injuries to a prisoner received by being confined in an unhealthful or unfit prison.

Indiana. White v. Sullivan County (1891) 129 Ind. 396, 28 N. E. 846; Greene County v. Boswell (1891) 4 Ind. App. 133, 30 N. E. 534; Morris v. Switzerland County (1899) 131 Ind. 285, 31 N. E. 77.

North Carolina. Manuel v. Cumberland County (1887) 98 N. C. 9, 3 S. E. 829.

Pennsylvania. Cousins v. Butler County (1919) 73 Pa. Super. Ct. 86.

For in caring for prisons a county is exercising part of its governmental or police power, and is not liable for the illness of a prisoner therein who contracts such illness by reason of the negligence of the county commissioners who fail to keep the jail in repair and suffer it to become unsanitary. White v. Sullivan County (Ind.) supra. The court in the instant case said: "It is settled, and rightly settled, that for the negligence of officers whose duties require an exercise of such a governmental power as the police power, neither a county nor a city is liable."

And in Hite v. Whitley County Ct. (Ky.) supra, it was held that the county was not liable for the impairment of health of a person confined in a jail, caused by its bad condition, under a statute which provided merely for the liability of members of the county court whose names were not recorded in favor of the needed repairs on the jail.

The basis of this nonliability according to the holding in Webster v. Hillsdale County (Mich.) supra, is that counties are involuntary territorial and political divisions of a state, created for the convenience of government, with certain duties imposed upon them as a part of the machinery of the state, for the nonperformance of which no liability should attach any more than it would to the state itself.

And in Cousins v. Butler County (Pa.) supra, a county was held not liable to a prisoner who was injured by a fall from a stairway in the county jail when an iron railing at the top of the stairway gave way by reason of the failure of the county commissioners to keep the jail in proper repair, inasmuch as the erection and maintenance of a jail is a governmental function, in the exercise of which the county as a political subdivision of the state is not liable for the negligence of its agents and officers.

And the county is not liable under such circumstances even though a statute expressly imposes upon it the duty of maintaining the county jail in suitable and convenient repair. Ibid.

In Cousins v. Butler County (Pa.) supra, the court alludes to the distinc.. tion between the acts of municipalities and other governmental agencies done or performed in their ministerial or corporate character in the management of property for their own benefit or in the exercise of powers assumed voluntarily for their own advantage, and, on the other hand, those broader functions of government proper, delegated by the state, to be performed by certain public instrumentalities, and points out that as to the former, the municipality may be held liable for the negligence of its employees and agents, while as to the latter, it is in

vested with the immunity which attaches to the sovereign; and the court observed that the distinction was especially applicable to to counties, which are but parts of the machinery that constitutes the public system, and are organized almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of provision for the poor, and especially for the general administration of justice.

operate a piece of machinery in the
penitentiary, due to the negligence of
the officers of the prison in compelling
him to approach the machinery, and
not providing proper means for the ex-
ecution of the business of the institu-
tion, does not state facts sufficient to
constitute a cause of action. Alaman-
go v. Albany County (1881) 25 Hun
(N. Y.) 551.

However, a statute requiring county commissioners to see that prisoners are kindly and humanely treated imposes upon such commissioners a ministerial duty, and they are liable to one injured as the proximate result of their nonfeasance or misfeasance in the performance of such duty. Hale v. Johnston (1918) 140 Tenn. 182, 203 S. W. 949.

And the statutory duty above referred to was held to be one owed both to the public generally and to the prisoner individually. Ibid.

Thus, where corporal punishment was a part of the system of discipline of a workhouse, and was constantly practised in the most brutal manner for many years, and the county commissioners knew, or by the exercise of ordinary care could have known, of its existence, the court held that they were liable for the act of a workhouse guard in inflicting such punishment to such a brutal extent on a convict that the latter died as a result thereof, the court being of the opinion that the failure of the commissioners to perform their statutory duty of seeing that prisoners were kindly treated was the proximate cause of the punishment inflicted upon the deceased convict, because, if they had been diligent to see that corporal punishment was not practised as a part of the discipline of the workhouse, it is apparent the deceased would not have been killed in the manner in which he was. Ibid.

IV. Of municipality for unsanitary or

improper condition of jail.

The cases almost unanimously hold that, in erecting and maintaining a prison or lockup, a municipal corporation is exercising a purely governmental function, and is therefore not liable to a person imprisoned therein,

46 A.L.R.-7.

for injuries sustained by reason of its improper construction or negligent maintenance, even though such negligent maintenance or improper construction of the prison causes permanent impairment of health or death to one confined therein.

Georgia. Gray v. Griffin (1900) 111 Ga. 361, 51 L.R.A. 131, 36 S. E. 792. Illinois. Blake v. Pontiac (1893) 49 Ill. App. 543.

Iowa. Lahner v. Williams (1900) 112 Iowa, 428, 84 N. W. 507. Kansas. La Clef v. Concordia (1889) 41 Kan. 323, 13 Am. St. Rep. 285, 21 Pac. 272; New Kiowa v. Craven (1891) 46 Kan. 114, 26 Pac. 426. Kentucky. Jones v. Corbin (1907) 30 Ky. L. Rep. 374, 98 S. W. 1002. Maine. Mains V. Ft. Fairfield (1904) 99 Me. 177, 59 Atl. 87, 17 Am. Neg. Rep. 523.

Minnesota.

Gullikson v. McDonald (1895) 62 Minn. 278, 64 N. W. 812. New York. Eddy v. Ellicottville (1898) 35 App. Div. 256, 54 N. Y. Supp. 800.

--

Ohio. Alvord v. Richmond (1896) 3 Ohio N. P. 136, 4 Ohio S. & C. P. Dec. 177.

West Virginia. Shaw v. Charleston (1905) 57 W. Va. 433, 50 S. E. 527, 4 Ann. Cas. 515. Canada.

Nettleton V. Prescott (1908) 16 Ont. L. Rep. 538, 12 Ann. Cas. 790.

Australia. Gibson v. Young, 21 N. S. W. L. R. 7; Davidson v. Walker, 1 N. S. W. L. R. 196, as cited in 12 Ann. Cas. 797, note.

Thus, in Blake v. Pontiac (Ill.) supra, it was held that a city was not liable for the neglect of its calaboose keeper in not keeping the calaboose clean, since a city, in the enforcement of its police regulations, cannot commit a wrong through its officers in such a way as to render it liable for his torts.

And in Lahner v. Williams (1900) 112 Iowa, 428, 84 N. W. 507, it was held that a municipal corporation was not liable for damage to the health of one who was arrested without legal cause or excuse and confined in a dirty, filthy lockup or calaboose used by the municipality as a prison, the

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. Gibson v. Young and Davidson v. Walker (N. S. W.) supra.

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 prisoners. The court in the instant necessary bedclothing furnished to 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