1846.

The State of Ohio v. Piatt and others.

IN BANK. SO continued in office, as clerk, until February, 1844. That Dec. Term, the sum of $966 26 was received by Piatt in his official capacity as clerk, the same being fines, fees and costs, in suits heard and determined in the Court of Common Pleas of Hamilton county; specifying each case by its name or title, and enumerating the amount received in each; averring that all such fines, &c., were collected and received by said Piatt, as aforesaid, upon certain indictments pending in said Court against such defendants, and that the same were payable, and ought to have been paid, into the county treasury of Hamilton county. The breach assigned, is neglect and refusal of Piatt to pay such moneys into the county treasury.

The second count is similar to the first, except that the sum received by Piatt is stated in gross, without specifying the individual cases in which the fines, fees and costs accrued.

The third count alledges an accounting, by Piatt, in a certain suit or complaint of the State of Ohio against him, of moneys received by him, in his official capacity as clerk, in which suit or complaint he stated the amount, so received for fines, fees and costs, to be $966 26; with an averment that such sum is composed of fines, &c., received by said Piatt, as clerk, in various criminal prosecutions, before that time prosecuted in said Court, and that they should have been paid into the county treasury. Breach, non-payment, as in first count.

To this declaration the defendants demur specially, and for causes of demurrer, assign

First That the declaration does not show that the County Commissioners have been so injured, as to invest them with the right to sue for and demand the sum of money claimed therein.

Second: It is not averred in the declaration that the indictments, wherein those fines, fees and costs arose, were determined in favor of the State of Ohio, and were of right thereafter the property of the county of Hamilton, and that the said commissioners had a right to sue therefor.

Third: It is no where averred in the declaration, for what grade of offences those fines were assessed and collected.

The State of Ohio v. Piatt and others.

1846.

Fourth It is not averred that said defendant, Piatt, was a IN BANK. qualified officer, under the constitution and the law, and that Dec. Term, the supposed sum of money, claimed by the plaintiffs, arose after such qualification, and came into his hands, as the Clerk of said Court, de jure.

Fifth It cannot be gathered from said declaration that the "certain indictments," therein spoken of, ever matured into judgments, or assumed any other judicial form, by which said fines, &c., could have been collected by an officer, in his capacity as such.

Spencer & Corwine, for Defendants.

First: The first point we shall examine, is, as to the power of the County Commissioners to prosecute this suit. The suit, though brought in the name of the State, is for the use of the County Commissioners. They, then, must have an absolute right at law to call the principal to account, for a breach of some one or more of the conditions of the bond. And this right must appear affirmatively upon the face of the declaration. The declaration in this case shows no such right; nor do the various statutes, conferring upon the commissioners their various powers and defining their duties, give to them any such right. See Swan's Stat. 205, sec. 7; Ibid. 206, secs. 9, 10, 12; 964, sec. 7; 968, sec. 31; 826, sec. 31; 389, sec. 2: and, also, 1019, 740-41, 638, 567.

A county is a quasi corporation; the powers given to its commissioners are specific, and they can exercise no powers not expressly granted, or necessarily incident to those granted. Gallia County v. Holcomb, 7 Ohio Rep. 232, part I.

The money sought to be recovered in this case, is required, by the 59th section of the law relating to fees, &c., (Swan's Stat. 407,) to be paid to the county treasurer, and therefore suit should be brought by him. Treasurer of Perry County v. Mæller and Hood, 11 Ohio Rep. 429.

IN BANK.

Dec. Term, 1846.

The State of Ohio v. Piatt and others.

Second: We claim also that the clerk has, by law, no power to compel the payment of fines, costs, &c.; that he is not the proper person to receive them, when collected; and, if paid to him by the parties, or by the sheriff, he does not receive them in his official capacity, and his sureties are not liable.They only undertake to be responsible for such acts of the clerk as are comprehended by the law as a part of his duties. Lewis v. Johnson, Walker's Rep. 206; 3 Leigh's Rep. 703; 13 Mass. Rep. 260; Swan's Stat. 407; Local Laws of 1843, 152-3.

Third: The declaration is defective, because it does not disclose the character or class of offences upon which the indictments spoken of were founded. All the fines, &c., collected by indictment do not belong to the county, but some go to the State, some to the township, &c. The commissioners have no right to sue, except for funds belonging to the county. 13 Serg. and Rawle 238. And the cause of complaint should be set out so fully, as to show that the cestui que use has the right to sue, and that the defendant may be well and distinctly apprised of what he is called on to answer. 6 Ohio Rep. 151.

Fourth: The sureties in this bond are not bound by any admissions made by the principal, nor are they liable upon an account stated by him. 4 Randolph's Rep. 317. And the action being joint, there must be a joint recovery. 4 Bibb, 596.

Brough & Zinn, for Plaintiff.

To determine the first question, as to the right of the County Commissioners to bring this suit, let us ascertain what their duties are, as prescribed by the statute:

Swan's Stat. 205, sec. 7, constitutes them a body corporate and politic, with power to sue and be sued. As will be seen by subsequent authorities, this is a general power; and the subsequent specification of certain cases in which they shall sue, are not words of limitation, but particularize certain cases, in which, without such provision, it might be doubtful whether

The State of Ohio v. Piatt and others.

they had authority to sue without such power being specifically IN BANK. given.

Ibid. 206, requires the commissioners, annually, to count the funds in the treasury, and settle with the county auditor and treasurer. This provision makes them the guardians of the county treasury; and also makes it their duty to supervise the accounts of the servants who have the immediate control of the county funds.

Ibid. sec. 10, specifies different causes for which the commissioners can expend the funds of the county. If they are at all times called upon to draw money out of the treasury, and expend it, should they not have the power of securing that for the county which, by law, belongs to it?

Ibid. sec. 11, authorizes them to permit the county auditor to draw upon the treasury for certain repairs, not exceeding fifty dollars. For drawing out of the treasury of all sums to a larger amount, it appears that the direct interposition of the commissioners are required, except in such cases where the sum is fixed by law.

Here

Ibid. sec. 12, gives the commissioners power to release fines, debts, or amercements due the county, in certain cases. is the direct power given to them over the various causes of action set forth in the declaration. The very reading of this section contemplates the power of the commissioners to sue for these fines; and does it not revert, as a necessary incident of power, that, where they can dispose of, they must necessarily have the power to collect? This power is somewhat modified by an amending act. Swan, 1019.

Ibid. 740, gives them power to contract for building necessary public buildings for the use of the county. Ibid. 741, to provide the means for the payment of claims against the county in consequence of these erections, and to expend any money in the treasury, belonging to the county, for that purpose.Ibid. 742, to levy a tax to discharge the above demands. Ibid. 206, to make contracts, &c., for repairing of the county roads, &c.

Dee. Term, 1846.

IN BANK.

1846.

The State of Ohio v. Piatt and others.

Ibid. 964, sec. 7, provides that the books and accounts of Dec. Term, the county treasury, and all money remaining in the treasury, shall, at all times, remain open to the inspection of the county commissioners. Is it possible that the law gives the commissioners such manifold powers to examine and ascertain when the interests of the county are affected, and still no power to sue when an injury takes place; that it gives them power to discover when the county funds have been misapplied, but no power to prevent it?

The county treasurer shall annually make a settlement with the commissioners, when they are authorized to make certain allowances to him. Ibid. 968, sec. 31.

When the commissioners think the bond of the treasurer not sufficiently large to cover the amount of funds in the treasury, they are authorized to require of him an additional bond. Ibid. 970.

Various other statutes authorize them to make appropriations from the county treasury, in different ways, and to different officers; showing that all matters pertaining to the general interests of the county, and not given in charge specifically to other officers, are placed under the control of the commissioners. Among these statutes are the following: Swan, 836, sec. 31; Ibid. 389, sec. 1; Ibid. 638; Ibid. 641, 813, 815, 816, 913, 840, 640, 161, 611, 570, 573.

Now, let us inquire what powers are vested in the commissioners, according to the decisions of our courts:

In Commissioners of Brown County v. Butts, 2 Ohio Rep. 449, it is decided, in general terms, that the commissioners are the representatives of the county; and whenever a cause of action exists against the county, they are the persons, by virtue of their office, who must be sued. It is only through them that the business of the county can be transacted, and the county acts through them.

In Commissioners of Trumbull County v. Hutchens, 11 Ohio Rep. 371, it was held, that the commissioners were liable for the price of a press for the county seal, furnished by the