The officer in charge of the deceased prisoner was the city's convict guard, a position he had held many years. The prisoner was sentenced to hard labor upon the city streets. This character of labor of a convict is expressly authorized by section 1936, Code 1923, wherein the recorder is authorized to sentence the prisoner "to hard labor upon the streets or public works, or in the workhouse or house of correction of the city." So, whether the convict is to serve hard labor on the streets, or on some public works, or his sentence is to the workhouse of the city, he is in all cases serving the sentence imposed by law, and in the execution of such sentence the city is in the exercise of a governmental function.
The authorities are all in accord that in the exercise of such governmental power the city is immune from suits of this character. See authorities cited in the note to Hillman *Page 510 v. Anniston, 46 A.L.R. p. 89, et seq. This immunity is time-honored. It is swept away in the instant case merely because the convict was put to work on the streets, rather than in the workhouse, though hard labor upon the streets is designated in the statute along with workhouse. The effect of the decision is to rest the principle of immunity upon the mere act of the recorder in selecting the place of work. If on the streets, liability may be imposed, if in the workhouse, the city is immune therefrom.
We find no authorities to sustain this view, and none are noted in the majority opinion. The only case where the question has been raised following the first pronouncement in this cause is that of the Mississippi Supreme Court of Warren v. Town of Booneville, 151 Miss. 457, 118 So. 290, 293, where the majority view was repudiated and attention directed to the fact that in the quoted text of Corpus Juris the authority of this case is the only authority noted. The Mississippi court well expressed our views in the concluding paragraph of their opinion as follows:
"We are of opinion that the working of the streets is a mere incident to the carrying out of the imposition of a sentence for crime on one who has violated the law or ordinance of the municipality, and that, if a prisoner is injured because of the manner of his being held, there would be no difference whether he were at work on the street, or at work in a municipal prison, making shoes or manufacturing cloth, or in the municipal blacksmith shop, engaged in hammering or welding, which latter are clearly and undeniably the exercise of governmental functions as to the prisoner so engaged. There can be no real distinction."
But further discussion would serve no useful purpose. We had considered the principle of law here involved well and firmly settled in the jurisprudence of this country, and, being persuaded its overthrow is unjustified by the authorities or sound reasoning, we have felt impelled to record this further dissent. So wide a departure from so well settled a principle should be left to the legislative department of the government.
ANDERSON, C. J., and FOSTER, J., concur in the foregoing views.