The liability of cities and towns for the negligence of their officers or agents, depends upon the nature of the power that the corporation is exercising, when the damage complained of is sustained. A town acts in the dual capacities of an imperium in imperio, exercising governmental duties, and of a private corporation enjoying powers and privileges conferred for its own benefit.
When such municipal corporations are acting (within the purview of their authority) 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, they are impliedly liable for damage caused by the negligence of officers or agents, subject to their control, although they may be engaged in some work that will enure to the general benefit of the municipality. Shearman & Redfield on Neg., §§128 and 126; Dillon on Mun. Corp., 966 and 968; Thompson on Neg., 784; Meares v. Wilmington, 9 Ired., 73; Wright v. The City of Wilmington, 92 N. C., 156; Wharton Law of Neg., sec. 190; Meyer’s Federal Decisions, vol. 10, sec. 2327. The grading of streets, the cleansing of sewers and keeping in safe condition wharfs, from which the corporation derives a profit, are corporate duties. Whitaker’s Smith on Neg., 122 ; Barnes v. District of Columbia, 1 Otto, 540-557 ; Treightman v. Washington, 1 Black., 39; Wharton Law of Neg., sec. 262.
*255On the other hand, where a city or town is exercising the judicial, discretionary or legislative authority, conferred by its charter, or is discharging a duty, imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers, though acting under color of office, unless some statute (expressly or by.necessary implication) subjects the corporation to pecuniary responsibility for such negligence. Hill v. Charlotte, 72 N. C., 55; State v. Hall, 97 N. C. 474; 2 Dillon Munic. Cor., secs. 9(15 and 975; Dargan v. Mayor, 31 Ala., 469; City of Richmond v. Long, 17 Grattan, 375; Stewart v. New Orleans, 9 La, 461; Wharton Neg., secs 191 and 260 ; Hill v. City of Boston, 122 Mass., 344; Shearman and Redfield Neg., sec. 129. As illustrations of the principle last stated, it has been held that a city is not answerable in damages for an assault with excessive force, committed by a police officer in the attempt to enforce a city ordinance, or for the negligent or unnecessary killing by a peace officer of' a city, of one whom he is attempting rightfully to arrest. Many cases, illustrating by example the principle that municipal corporations are exempt from liability, when acting as agents of the State and exercising governmental pow-er, will be found collected in Donohue v. City of Brooklyn, 51 Hun., 563 (Albany Law Journal, vol. 39, No. 17).
The plaintiff was arrested for an assault, committed in the presence of the peace officer ofthecity, who arrested him, and the officer was unquestionably exercising a right, in fact discharging a duty to the public. The Code, §§ 3808, 3810, 3811 and 3818; Pr. Laws of 1883, ch. Ill, sec. 59.
The city of Asheville, was not, therefore, answerable in damages to the plaintiff for any violence or negligence, on the part of its officials towards him, up to the moment when he was committed to the city prison.
When we follow the plaintiff across the portal of the prison we are confronted with the new question, whether there is any provision of law creating a liability (expressly *256or by implication) on the part of the city for injury to the health of, or for the bodily suffering of, the plaintiff caused by the neglect of the city or its agents in the construction of the prison or the subsequent superintendence of it. Sec. 6, Art. XI, of the Constitution, and sec. 3464 of The Code, are as follows: Sec. 6, Constitution, Art. XI: “ 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,” &c. The Code, sec. 3464: “The Sheriff, or keeper of any jail, shall every day cleanse the room of the prison in which any prisoner shall be confined and cause all filth to be removed therefrom; and shall furnish the prisoner a plenty of good and wholesome water, three times in every day; and shall find each prisoner fuel, one pound of good wholesome bread, one pound of good roasted or boiled flesh, and every necessary attendance.”
Section 3465 of The Code imp'oses upon the County Commissioners the duty of purchasing “ a number of good warm blankets or other suitable bed-clothes, which shall be securely preserved by the jailer and furnished to the prisoners for their use and comfort, as the season or circumstances may require.”
It is not necessary to decide, whether the substitution in The Code of the term “ keeper of any jail ” instead of “keeper of any public prisión,” (in sec. 9, ch. 89, Bat. Rev., quoted in Lewis v. Raleigh, 77 N. C., 229), limits the responsibility of towns, or whether jail, as the generic term, includes every kind of prison, or whether section 3465 of The Code applies to police prisons at all.
The Aldermen of Asheville were vested with authority to erect a city prison by section 47, ch. Ill, Private Laws 1883, if they did not have the power by implication under the general law in reference to towns; and when they built the police guard-house in the exercise of their power, the city *257became as fully amenable for its proper structure and superintendence, as the General Assembly was required by the Constitution to make it answerable by competent legislation.
The defendant, 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. Dillon on Munic. Corp., sec. 975 (773); Hill v. Charlotte, supra.
By a well-known rule, therefore, the law, imposing this responsibility on such municipal corporations for the proper structure and superintendence of their prisons, must be construed strictly.
We hold that the defendant is liable in damages only for a failure, either to so construct its prison or so provide it with fuel, bed-clothing, heating apparatus, attendance and other things necessary as to secure to the prisoners committed to it a reasonable degree of comfort and protect them from such actual bodily suffering as would injure their health.
If the Aldermen of the city built a reasonably comfortable police prison, and afterwards 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 the plaintiff was caused by neglect of the jailer, the policemen, or the attendants to keep the fires burning all night, or to give the plaintiff the necessary bed-clothing furnished to them. Shearman & Redfield on Neg., sec. 139, and note (2).
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 *258articles 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. Threadgill v. Commissioners, 99 N. C., 352. The rule in reference to the liability of counties for torts is always the same as that which applies to cities and towns when exercising governmental duties. ' Counties are never answerable in damages for torts, unless made so by the provisions of some statute, either expressly or by necessary implication. Bouditch v. Boston, 4 Stiff., 323; Dillon on Munic. Corp., secs. 963 and 965.
In Threadgill v. Commissioners, supra, Chief Justice Smith, for this Court, after laying down the rule that a county is required to provide money to repair public buildings, other than prisons, by the provisions of the The Code, § 707, subsections 5, 6 and 7, says: “ The doctrine is, that while these corporate agencies must provide the means and employ the men to perform such duties, they are not personally and by their own labor to perform such menial service, and the default to make them liable must be in neglecting to exercise their authority in the use of labor and money for that purpose, and so it must be charged to make a cause of action against them.” It is true that this language was used in reference to the liability imposed by The Code upon the Board of Commissioners, as representing the county, for a failure to have the public privies cleaned, and allowing them to become a nuisance.
But the reasoning and the principle apply to the general duty of building and overlooking prisons, imposed by the Constitution upon counties and towns in the very same language, and the statutes (The Code, §§ 3464, 3465) are, if there is any difference, more stringent as to the duty of County Commissioners and county jailers in providing and caring for pris*259oners in the county jails, than they are towárds town authorities and keepers of police prisons.
However the general question of the liability of counties,, by virtue of this legislation, may hereafter be settled, we may safely say that neither counties nor towns can be required, as a general rule, to answer in damages for injuries' to prisoners caused by the neglect of their respective jailers, policemen or guards who may have immediate charge and custody of them, and of which the governing officials of the corporation had no notice.
We think that where window-glass in the window of a police prison has been broken and the bed-clothing furnished for its inmates has been destroyed, but the governing officers of the town are not shown to have had actual notice of the breaking or destruction, or to have been negligent in omitting to provide for such oversight of the prison as would-naturally be expected to give them timely information of its condition, there is not such a failure in discharging the duties of construction or superintendence as to subject the corporation to liability. We do not wish, however, to be understood as intimating that a city or town would not be liable, if it should retain incompetent or careless jailers or servants after notice of their character, for damages caused by their negligence, though the question is not directly presented in this case.
It naturally follows, from giving our sanction to the principles already stated, that we should hold that the Judge below erred in refusing to give the third instruction asked, and in telling the jury in lieu of the charge asked : first, “ It must appear from the testimony that the imprisonment of the plaintiff by the defendant and the carelessness or neglect of the defendant, or its agents, in providing sufficient bed-clothing, or properly heating the prison, or failing to supply the windows with panes, resulted in the injury which plaintiff alleges he had sustained.” Second : “ If the injury sus-*260taiaed by the plaintiff resulted from the carelessness of the defendant, or its officers, and its failure to provide sufficient .and suitable means to insure his comfort and safety, then the defendant is responsible, and damages may be awarded to the plaintiff as compensation,” &c.
Acting under the instruction given, it may be that the jury believed from the evidence that the sickness and suffering of the plaintiff was caused'by the failure of the keeper of the prison to make a fire in a stove, though he had an abundance of fuel provided by the proper authorities of the city. The case of Lewis v. City of Raleigh, supra, was one in which the plaintiff was arrested for a violation of a city ordinance, which is made, by section 3820 of The Code, a criminal offence, and therefore it is very similar to this. But it is distinguishable in that the plaintiff Lewis was confined in a narrow cell, 8x14, located in a cellar under the market-house, with no window and no ventilation except a'grate in the door that opened on an under ground passage, with a window at one end, lighted through a grate on the sidewalk. Reviewing the admitted facts, Justice Reade, for the Court, said : “ 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.” On the trial below there was a great deal of testimony tending to show that the prison of the defendant was well constructed for health and comfort, and was provided with bed-clothing, fuel, stoves and every necessary to secure a reasonable degree of comfort and protect health. Counsel on the argument cited Bunch v. Edenton, 90 N. C., 431, in support of the contention that the evidence established the accountability of the defendant. The plaintiff there, brought his action to recover damages for an injury caused by his falling into an excavation near the sidewalk in the town of Edenton. Justice MekrimoN, in delivering the opinion of the Court, adverted to the distinction we have drawn between the cor*261porate and governmental powers of a town, and cited Lewis v. Raleigh, supra, and Hill v. Charlotte, supra. The law required that the commissioners “ shall provide for keeping in proper repair the streets and bridges in the town.” The Code, sec. 3803. The Court, construing the law, said : “ And proper repair implies also that all bridges, dangerous pits, embankments, dangerous walls, and the like perilous places and things very near, shall be guarded against by proper railings and barriers.”
It is not necessary that we should pass upon the exception to the evidence of Dr. Reagan, who testified as an expert, yet we would suggest a careful examination of the rule laid down in State v. Bowman, 78 N. C., 509, in framing questions for the witness in any future trial.
For the error pointed out in the charge to the jury, the defendant is entitled to a new trial.
Error. Venire de novo.