
    Board of Education v. McLandsborough.
    Where public money in custody of a public officer of this state, and with the disbursement of which money he is charged by law, is stolen or otherwise lost without his fault, and the legislature pass an act exon- . eratingsuch officer and his sureties from the payment of such money, and direct that a tax be levied in the territory upon which the loss must fall to meet the deficit, such act is not forbidden by the constitution, state or federal.
    Error to the Court of Common Pleas of Harrison County. Reserved in the District Court.
    John McLandsborough, on May 21, 1877, brought suit in •the court of common pleas of Harrison county, averring that lie was then a citizen of said county, and a resident land-owner and taxpayer in Scio special school district in North township in said county ; that Joseph MeElveen, about March 29,1877, was the duly elected and qualified treasurer of said school district, and had given bond with sureties for the performance of his duties as such treasurer, and then had in his possession as such treasurer, belonging - to said school district, $525.00, school funds which had been assessed and collected from the taxpayers of such district, including said McLandsborough, for school purposes; that said MeElveen claims to have been robbed of said funds, on or about March 29, 1877; that said McElveen’s term as such officer expired in April, 1877, and his successor has been elected and qualified; that it was the duty of said MeElveen to pay over to his successor said sum of money, and upon his refusing to do so, his sureties became liable to pay the same, except $36 thereof; that MeElveen and his sureties desire to have the property of said school district again - assessed to raise said deficit, so that they may be released from their obligation; that the board of education is about to have a meeting for the purpose of assessing and certifying a tax upon the property of said district to make up said sum, which tax is to be levied and collected this year, and in part from said McLandsborough’s property, and to release MeElveen and his sureties from their liabilities, and they have fixed May 23,1877, as the day upon which to perform said illegal act; that the act will be unconstitutional, oppressive, and will produce irreparable injury to the rights of said McLandsborough, unless restrained. McLandsborough therefore asked that the said board of education be enjoined and restrained from making or certifying such levy of tax, or releasing said MeElveen and his sureties.
    On June 2, 1877, the board of education of said district filed an answer, of which the following is, substantially, a copy:
    1. Now comes E. S. ’Woodborne, Wm. Herron and John "Voorhees, who compose the said board of education of Scio special school district, and for answer, say they deny that they have done of contemplate doing any illegal or unconstitutional act in regard to levying taxes, as claimed in the petition, and say all the taxes they have levied or contemplate levying, as said board of education, for this year, are necessary and proper for carrying on the schools of said district, and they deny plaintiff’s right to have an injunction issued against them, as prayed for in the petition.
    2. They further say, regarding the contemplated releasing of the said J oseph McElveen and his sureties from liability on said McElvcen’s bond as treasurer of said school district, that it is true they contemplate such action, but not in an illegal or unconstitutional manner. In justification of their said proposed action they say that the general assembly of the state of ■Ohio, on April 24, 1877, passed a law providing, among other things, that the board of education of said special school district are hereby authorized to settle with said treasurer, and release him and his sureties on his official bond as treasurer of said special school district, from the payment of said sum of $525, as aforesaid ; and that said treasurer and his sureties shall not hereafter be held liable for the payment of said money; provided that before such release shall be had, the board of education shall submit the question to the qualified electors of •said school district, at a special election, of which ten days’ notice shall be given by posting up written or printed notices •in five of the most public places in said district, and that a majority voting shall favor the release, the election to be held ¡and conducted by the board of education. Said defendants say said law was passed with special reference to the contemplated release of said Joseph McElveen and his sureties as aforesaid, ■and they further say that they duly gave the required notice of said election, and on May 19, 1877, submitted the said question, as provided in said law, to the qualified voters of said district, a majority of whom then and there voted in favor of releasing said McElveen and his sureties from further liability for or on account of said bond, and in favor of a tax to supply the deficiency in the school funds of said district, made by reason thereof. Said defendants therefore say their action and •their contemplated action in reference to releasing said Joseph McElveen and his sureties, as aforesaid, is in accordance with. the laws of the state of Ohio; and they deny plaintiff’s right to-en join them from thus acting, and they asked to be dismissed with their costs, and for such other order as may be proper.
    ■ The act of the legislature, above referred to, is as follows:
    “ An act for the relief of Joseph Mcllveen, treasurer of Scio special school district, North township, Harrison county,. Ohio, and his sureties.
    “ Whereas, Joseph Mcllveen, treasurer of said Scio special school district, was, on the evening of the twenty-ninth day of March, a. d., 1877, assaulted by two unknown men, knocked down and robbed, on the railroad track, between his residence and the village of Scio, Harrison county, Ohio, whither he was going for the purpose of paying out money to teachers and others, of the sum of live hundred and twenty-five dollars of the public money belonging to said special school district, in the hands of said treasurer; and,
    “ Whereas, said robbery was not due to any fault or negligence on the part of said Joseph Mcllveen ; and,
    “ Whereas, said Joseph Mcllveen is wholly unable to pay said amount, and has no property out of which any part thereof can be made ; therefore,
    “ Section 1. Be it enacted by the general assembly of the-state of Ohio, that the board of education of said Scio special school district are hereby authorized to assess a tax upon all. the taxable property of said special school district, in addition to the tax now authorized by law, sufficient to raise the sum of five hundred and twenty-five dollars, for the purpose of supplying the deficiency in said school fund.
    “ Sec. 2. The board of education of said special school district are hereby authorized to settle with said treasurer, and release him and his sureties on his official bond as treasurer of said special school district, from the payment of said sum of' five hundred and twenty-five dollars, stolen as aforesaid; and that said treasurer and. his sureties shall not hereafter be held liable for the payment of said money : provided, that before such release shall be had-, the board of education shall submit the question to the qualified electors of said school district, at & special election, of which ten days’ notice shall be given, by posting np written or printed notices in five of the most public places in said district, and that a majority voting shall favor the release, the election to be held and conducted by the board of education.
    “ Sec. 3. This act shall take effect and be in force from and. after its passage.”
    The following journal entry is a part of the record.
    “And afterward, to wit, July 7; 1877, being term time, this cause came on to be heard upon plaintiff’s demurrers to the-second defense in said answer .as alleged; which, was argued by counsel; on consideration whereof the court sustain said demurrer, to which the defendant excepts; and on motion of plaintiff it is ordered and adjudged by the court that said defendant be, and it is hereby enjoined and restrained from releasing or talcing any steps to release said McElveen or his sureties from their obligation under said bond, to which defendant excepts, and said exception is here noted. It is thereupon considered by the court that said plaintiff recover of said defendant his costs herein expended, and that defendant pay its own costs.”
    The board of education prosecuted error to the district court, which court reserved the cause to this court for decision.
    
      Gurmingham d) Hollingsworth, for plaintiff in error.
    
      J. M. Estep, for defendant in error.
   Okey, J.

In State v. Harper (6 Ohio St. 607), it was settled, that the felonious taking and carrying away the public moneys in the custody of a county treasurer, without any fault or negligence on his part, does not discharge him and his sureties, and cannot be set’up as a defense to an action on his official bond. The bond involved in the consideration of this case is not different in legal effect from the bond in Harper’s case. In Harper’s case, however, the question presented in this case was in no way _ involved, that is, whether, where such an officer has lost public funds without any fault on his part, it is within the power of the general assembly to provide that the loss thus sustained shall be made to rest on the- people to whom the money belonged, and not on an unfortunate but blameless officer.

That the taxing power is a legislative power admits of no doubt. Lima v. McBride, 34 Ohio St. 338-350. And any limit to this power must be found in the constitution itself. Without undertaking to enumerate or define those limitations, we are clear that the act in question in this case does not fall within any of them, nor does the act violate a provision common to both state and federal constitutions against impairing the obligations of contracts. Bonds like this, where the deficit is of the same character as in this case, are prosecuted in the name of the state (Hunter v. Mercer Co., 10 Ohio St. 515), and the legislature undoubtedly has authority to release obligations which could only be thus prosecuted. Indeed, it is difficult to fix any limit to the power of the general assembly in this respect, where the funds so lost were raised by taxation, which, as we have said, is clearly a legislative power.

Counsel have cited no case in which such power, under a constitution like ours, has been denied, and we have found no such case. People v. Supervisor, 16 Mich. 254, and Bristol v. Johnson, 34 Mich. 123, were placed entirely on a provision in the constitution of that state which is not contained in our constitution, and which provision, it was held, forbids such release by the legislature. And the rule referred to in the beginning of this opinion as to civil actions against the officer, where the funds in his hands have been lost without his fault, is stated by Judge Dillon in the same way, but he adds that such officer will not be liable if he has been “ relieved from this responsibility by statute.” 1 Dillon on Mun. Corp. 296.

Judgment reversed.  