The State of Ohio v. Piatt and others.

1846.

clerk, without first consulting the representatives of the county. IN BANK. In no case, does the law make it the duty of the commissioners Dec. Term, to furnish a press; but the Court held that, inasmuch as it was made their duty to furnish a court room and "stationery," a press was a necessary incident, and therefore necessarily incluIcluded in their incidental duties. In the various citations which we have given, it is made the duty of the commissioners to count the county funds, and see that they are safely kept. Is it not a necessary incident to this duty, that they should see that no person retains what, by law, is made payable into the county treasury? This is a strong case, to show that the implied powers we claim for the commissioners, must exist in them.

In Reynolds v. Commissioners of Stark County, 5 Ohio Rep. 205, it is decided, that the commissioners have power to sell the real estate belonging to the county, vested in them for the use of the county. This power is no where given in express terms to the commissioners, and is implied. Would it be a further stretch of their implied powers to say they shall take care of the county funds?

If this action cannot be maintained, then the practice in this State has been illegal; for we find numerous cases where the commissioners have brought and sustained similar suits, without their right being questioned.

Commissioners of Clermont County v. Lytle, 3 Ohio Rep. 289, was an action for a money demand against Lytle. The suit was maintained in the name of the commissioners without

objection.

Commissioners of Scioto County v. Gherkell, Wright's Reports, 494, was an action for alledged illegal fees taken by the defendant, late an auditor of Scioto county. Although the commissioners were nonsuited, no objection was made to their right to maintain the suit.

Smith's Adm'r v. Commissioners of Licking County, 2 Ohio Rep. 312, was an action against the administrators of a surety on an official bond, given by a sheriff of Licking

The State of Ohio v. Piatt and others.

IN BANK. County. It was maintained in the name of the commissioners Dec. Term, without objection. The sheriff's bond, like the clerk's, is given

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to the State. Swan's Stat. 856.

Ohio, for use of Commissioners of Guernsey Co., v. Findlay, 10 Ohio Rep. 51, was an action on the official bond of the county treasurer, for a delinquency in not accounting for the funds received into the county treasury. The bond of the treasurer is similar to that of the clerk. Swan's Stat. 963. No objection was made as to the form of the action; and, from the defence made in that case, it is thought this point would have been made, if the eminent counsel in that case had thought it could have been taken with any chance of success.

But, it is contended that the interest of the county does not sufficiently appear in the declaration. The allegation is, that these "fines, fees and costs, are payable into the county treasury." This allegation, we submit, is sufficient. Besides, the interest of the county can be shown in the progress of the suit.

The case of The State, for the use of the Executors of Spencer, v. Caffee, 6 Ohio Rep. 151, is in point. It was an action on a sheriff's bond; and the same objection was then made that is now. The Court say, the act under which this suit is brought, (Swan's Stat. 161,) "does not prescribe any 'method of setting forth the nature of the interest of the person so suing, (for his own use,) except in the progress of the 'cause." The declaration was sustained.

The same rule is considered, in Numlin v. Westlake, 2 Ohio Rep., and sustained.

HITCHCOCK, J. This action is brought upon an official bond, pursuant to the act of February 23, 1816, entitled "an 'act pointing out the manner in which suits may be prosecuted on the bonds of executors, administrators and officers." This law authorizes any person, who may be injured by the misconduct of any officer, to commence a suit, in the name of the obligee, named in the bond of such officer, for his use; and if judgment is recovered by the plaintiff, the person for whose use

The State of Ohio v. Piatt and others.

Dec. Teria,

1816.

the suit is brought, shall have execution for such sum as shall Is Bank. have been ascertained to be his due, together with costs. It is manifest that no person can thus sue, unless he has sustained an injury. But the withholding of money collected by an officer in his official capacity, would be, within the meaning of the law, an injury, for which an action could be sustained.

The first question presented by the demurrer in this case, is in substance, whether the commissioners of a county can sue for and collect debts due the county. We suppose there can be no doubt upon the subject. They are the representatives, the guardians of the county. By the seventh section of the act "establishing boards of county commissioners," (Swan's Stat. 205,) it is expressly enacted, "that the board of com'missioners, in the several counties in this State, shall be capable ' of suing and being sued, pleading and being impleaded, in 'any court of judicature in this State." It is only through this board of commissioners that suits in favor of, or against the county, can be instituted. The same section further authorizes and requires county commissioners "to ask, demand, and recover, by suit or otherwise, any sum or sums of money, or other property, due to such county on account of advances. made by them, on any contract with any person or persons, for the erection or repairs of any public buildings or bridges, or any other contract which, by the provisions of this act, they are authorized to enter into; and, in like manner, to 'sue for and recover in money the value or amount of any labor, or article of value subscribed instead of money, to aid in erecting or repairing public buildings or bridges, where 'such labor or article of value, upon their requisition, shall not have been performed, delivered, or paid, in a reasonable 'time," &c.

It is supposed by defendant's counsel that, inasmuch as in this section certain cases are enumerated in which commissioners may sue for money due the county, that they are precluded in all other cases. If it be so, then it follows that, if a person is indebted to a county in any other manner, payment

The State of Ohio v. Piatt and others.

IN BANK. cannot be enforced by process of law. It would not do to Dec. Term, establish any such principle. If Piatt, in his official capacity

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as Clerk of the Court of Common Pleas, had received money belonging to the county of Hamilton, and it is alledged in the declaration that he had, then this suit was well brought in the name of the obligee in his official bond, for the use of that county. In no other way could the money be collected by process of law. Nor does this opinion in the least conflict with the case of the Treasurer of Perry county v. Hood, 11 Ohio Rep. 429, cited by defendant's counsel.

The next objection to the declaration is, that "it is no where 'averred therein, that the indictments wherein those fines, fees and costs arose, were determined in favor of the State of 'Ohio, and was of right thereafter the property of the county ' of Hamilton, and that the commissioners had a right to sue 'therefor."

The averment in the declaration is, that Piatt, during his continuance as clerk, received, in his official capacity, $966 26, the same being fines, fees and costs, in suits heard and determined in the Court of Common Pleas of Hamilton county; and that the same were payable, and ought to be paid, into the treasury of that county. The declaration in the first count specifies the particular cases in which these fines, fees and costs were paid and received. It seems to the Court that, in this respect, it is sufficient.

It is next objected, "that it is no where averred in the de'claration for what grade of offences those fines, &c., were 'assessed and collected."

This was not necessary. If upon trial to a jury the plaintiffs shall claim fines, fees, or costs which do not of right belong to the county, they can, and unquestionably would be rejected. For the present purposes, it is sufficient that it is averred in the declaration that these fines, fees and costs were, of right, payable into the county treasury.

Again, it is objected to the declaration, that "it is not ' averred therein that Piatt was a qualified officer under the

The State of Ohio v. Piatt and others.

constitution and the laws, and that the supposed sum of IN Bank.

money, claimed in plaintiff's declaration, arose after such Dec. Term,

* qualification, and came into his hands as the clerk of said

court de jure."

The declaration sets forth the bond, the appointment of Piatt, the delivery of the bond, and its deposit with the county treasurer, and that he entered upon the discharge of his duty as clerk, and so continued until February, 1844. It is not expressly alledged that he took the oath of office; but whether he did or not, can make no difference. Under the circumstances, neither he nor his sureties would be permitted to defend themselves upon the ground that he was an usurper. The declaration further alledges that, while he was thus in the exercise of his office, he received the money in controversy. If this be so, it is immaterial, whether the fines were assessed, or the costs accrued, before or during the term of his official appointment. In either event, being received by him in his official capacity, they are within the condition of his bond.

The last objection is, "that 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."

Let this be as it may, it appears from the declaration that Piatt was an officer, and that as such officer he did collect these fines, fees, and costs, and that they belonged to the county; and we are not to presume that he collected them without authority of law.

In the opinion of the Court, the declaration is sufficient in law to entitle the plaintiffs to maintain their action. The defendants will have leave to withdraw the demurrer and plead.

READ, J. being connected with one of the parties, took no part in the decision of this case.

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