
    Ohio on the relation of Albert V. Stebbins vs. The Treasurer of Wood County.
    Under the provisions of the act of February 27th, 1846, entitled (< an act to authorize the County Commissioners of this State to lay out and establish State Roads/' the Commissioners of one county, through which a Free Turnpike road passes, have no authority to change that part of the Free Turnpike into a State road.
    This was an Alternative Mandamus, brought to the Court in Bank, from the County of Wood;
    The relation shows that the relator holds three several orders on the Treasurer of Wood county, bearing date.December 14th, 1847, February 12th, 1848, and March 22d, 1848, amounting in all to $479 62 — said orders having been given him by the Commissioners of the Toledo and Woodville Free Turnpike Company, for work and labor performed by him in the construction of a road for said company ; that he presented said orders to the defendant for payment, which was refused, and that the said defendant had funds in his hands, collected by tax under the provisions of the charter of said company, for the purpose of constructing said road, to an amount sufficient to pay said orders, at the time he so presented them and demanded payment thereof as aforesaid.
    The relation further shows that the Toledo and Woodville Free Turnpike Co. was incorporated by an act of the General Assembly of the State of Ohio, passed March 18, 1845, and that the same was amended by a subsequent act, passed January 27, 1846 — that by the provisions of said act and amendment, the commissioners named therein had power to lay out and establish a Free Turnpike road, beginning at Toledo, in Lucas county, and terminating at Woodville, in the county of Sandusky ; and for the purpose of aiding in the construction of said road, a special tax was to be levied and collected on the lands designated, and in the manner provided by said act and amendment — that a portion of said road was located and established, by the Commissioners aforesaid, in Wood county, Ohio —- that the tax, to be for that purpose collected Wood county, was regularly assessed and levied upon the lands chargeable therewith, in said county, and collected by the defendant as Treasurer of said county, and that by the 4th section of said amendatory act, the county treasurers with whom any funds may be placed, by said act, appropriated to the construction and repair of said road, shall not pay out any part of the same, except on the order of the Board of Commissioners, signed by the President — and further that O. H. Knapp, whose name appears upon said orders as President of said board, was President at the time of giving said orders, and that said orders were given by order of said board as the same purport.
    The relation further shows that the work performed by the relator, in the construction of said road, in the county of Wood, amounted to more than the amount of said orders.
    The defendant, by his answer, as a justification for not paying said orders, relies upon an order of the County Commissioners of Wood county, made at the regular June session in the year 1847, in the following words : “Ordered that that portion of the Free Turnpike road from Toledo in Lucas county, to Woodville in Sandusky county, which is located in Wood county, be changed into a State road,” and claims that this order did so change that part of said road into a State road, and relieved him from any obligation to pay out any funds on the order of the Commissioners of said Free Turnpike road.
    
      Fitch fy McBain, for the Relator.
    
      Wm. II. Hopkins, Contra.
   Birchard, C. J.

The sufficiency of the return to the mandamus depends upon the validity of the order of the Commissioners of Wood county, purporting to change that part of the Free Turnpike lying in Wood county, into a State road.

They claimed authority for the order purporting to effect this chanSe> under the 5th section of the act of February 27, 1846, “an act to authorize County Commissioners of this State to lay out and establish State Roads.” (44. vol. stat. p. 73.) That part of the 5th section which is relied on, reads thus: “The County Commssioners shall have power to change any Free Turnpike road, in their respective counties, into a State road, which shall thereafter be constructed and repaired as other State roads are by law constructed and repaired, any thing in the acts laying out and establishing said Free Turnpike roads to the contrary notwithstanding.” The Commissioners of Wood county have read and acted upon this section of the statute without reference to any other enactment. They have treated it as an independent piece of legislation, entirely complete in and of itself. They have accordingly exercised the power, in a summary way, by resolving that the part of the road lying in the county of Wood, should be a State road. This manner of executing the law will not do. We have only to read the whole act, and reflect a moment upon its subject matter, to detect the error in assuming that such a proceeding was ever contemplated by the legislature. A State road is a road running into two or more counties, and is distinguished by this from a county road, which lies wholly within one county. The first were formerly established by acts of special legislation. The latter by County Commissioners, under general laws.

The act of 27th February, 1846, by its iirst section, confers authority upon the County Commissioners of the several counties to lay out and establish State roads, in the manner provided in the 2d, 3d and 4th sections of the act. Then follows the fifth section, above referred to. From the whole act taken together we find that before the Commissioners can move in establishing a State road, an application must be made to them by petition, signed by at least forty free holders of each of the counties through which it is proposed to establish the road. On receipt of such petition, the board of County Commissioners of each of said counties must appoint one disinterested freeholder of their respective counties, as Commissioners to view and survey said road. On the coming in of a report from the Commission, thus created, recommending ' the establishing the State road, the County .Commissioners have the same power to declare whether the same shall or shall not be declared a State road, within their respective counties, that is by law conferred on them in relation to State roads. The fifth section, following the above provisions, refers to them and indicates the course to be pursued in effecting the change of a free turnpike into a State road. Whether or not the change can be effected by pursuing these steps irrespective of ■ the rights vested in the turnpike companies, by their acts of incorporation, is a question not necessary now to be determined. This case is disposed of by a determination of the point already decided. The order of the County Commissioners of Wood, made at their June session, was a mere nullity. It was entered without any sufficient authority, and is void. A peremptory mandamus may issue.- Judgment for costs.  