
    Ex parte David A. Black.
    The right to determine when a court-house, jail, and public offices shall be erected by a county, is vested in. its commissioners. They must provide a court-room, jail, and offices; hut they need not be buildings erected expressly for the purpose.
    The act of January 28, 1851, does not limit the discretion of the commissioners of Hamilton county in these particulars.
    Hor are they deprived of their discretion by the contract made by and between them and the Messrs. Cook for the building of a particular court-house and jail.
    A lawful discretion vested in an individual, officer, or corporation, can not be destroyed or limited by the writ of mandamus.
    
    It is equally well settled that, before the writ will be issued to either, a plain dereliction of duty must be established.
    This is an application for a writ of mandamus to the board of county commissioners of Hamilton county. In support of it an affidavit of the relator, David A. Black, and sundry exhibits therein referred to wore read.
    The affidavit states that the relator, ever since October 23, 1850, has been and now is one of the commissioners of said county. That by the laws of Ohio, it is the duty of said commissioners to provide a good and sufficient court-house and jail, and good and convenient fire-proof buildings, in which shall be kept the offices of the clerks of courts, sheriff, recorder, auditor, and treasurer; to be formed of such material and of such dimensions, and on such place or places as the commissioners may direct at the seat of justice.
    
      That, by an act of the general assembly, passed January 28, 1851, entitled “An act to authorize the commissioners of Hamilton county to erect public buildings,” said commissioners *and their successors in office were authorized to erect all such suitable and necessary buildings for said county upon the same place or lot of ground then known as the “old court-house property,” in the city of Cincinnati, upon such plan and of such materials as to them should seem proper.
    That by the fourth section of the said act, commissioners were authorized to appoint a superintendent of such public buildings as they might determine to erect; to fix his compensation, and dismiss him at pleasure; and it was further thereby provided, that said commissioners should make all necessary arrangements and contracts for the work and materials to be furnished for said public buildings, require the faithful performance of all contracts in relation to the same, issue orders to the county auditor for the payment of all moneys due for work and materials furnished, and superintend the whole business to its completion. That before entering into any contract for the erection of any of the said buildings, they should give at least twenty days’ notice in at least four of the daily newspapers published in Cincinnati, that proposals would be received at the auditor’s office for the erection of said buildings, according to plans and specifications to be prepared for that purpose, and, upon opening such proposals, should award the contract or contracts to such person or persons as they might deem the lowest and best bidders.
    That, before the passage of this act, the court-house in said county had been burned down, and the county did not own any building in which the courts could be held.
    That, pursuant to the act, said commissioners, in February, 1851, appointed one Isaiah Rogers superintendent, and fixed his compensation at two per cent, on the entire cost of the buildings ; which appointment he accepted, and, by direction of the commissioners, made out plans, elevations, and specifications for a court-house and jail, which they approved. That thereupon the commissioners gave the requisite notice for building proposals for said court-house and jail, according to said plans, etc. That proposals were received *and opened; and, on 'July 5, 1851,' the contract was awarded to Milton H. Cook and Alfred M. Cook, partners, at the sum of $095,253.29 ; that is to say, for the court-house, $168,732.55, and for the jail, §226,520.74; these being the lowest and best bids. That said award was duly recorded in the journal of the commissioners, and the contracts afterward reduced to writing and signed by said Cooks and by Richard JL Cox, and D. A. .Black, the relator, two of the commissioners, a copy of which, dated July 15, 1851, is annexed to the affidavit. That by said contract it was, among other things, stipulated that the buildings should be commenced immediately and progressed with, with all reasonable speed, and to be completed by May 1, 1855. And that the commissioners should have the right to change the plan or manner of the buildings, either as to material or style of finish ; and if the cost of labor and materials should be thereby increased, a suitable increase of compensation should be allowed; if lessened, a suitable deduction should be made ; but if the cost were materially reduced, the Cooks should bo entitled to a suitable compensation for the alteration.
    That the Cooks immediately commenced the excavation for the foundation of said court-house and proceeded to lay the same; that they made due and satisfactory progress in the work, and by November 4, 1851, had nearly completed the foundation, and had also expended large sums of money in preparing machinery, steam engines, etc., to proceed rapidly with the undertaking.
    That, at the October election, 1851, Jesse Timanus was elected commissioner, in place of said Cox, and was duly qualified and sworn into office; after which, on November 4,1851, Timanus and John Patton, another of said commissioners, without any excuse therefor, and without the assent and against the wish of the relator, ordered said Cooks to cease any and all further proceeding on the contract, and to cease work on said buildings, and claimed the right to repudiate the contract, and under pretense of such right, *gave the order aforesaid, and yet refuse to permit the contractors to erect said buildings or either of them.
    That the public interest requires the erection of said buildings, that there is not, at this time, any sufficient safe depository for the public books and papers of the county, or for keeping the records of the courts of said county; and that the county will also be held responsible to said Cooks in damages for a violation of the contract; which relator believes will amount to a very large sum of money; all which will be saved to the county if the commissioners discharge their duty as required by law.
    Upon the case thus made, the court were moved to allow a writ of alternative mandamus, commanding the commissioners of the county to proceed with the erection of said court-house and jail, under and pursuant to the contract aforesaid, or show cause for their refusal; or, if such writ could not be granted, that a writ might issue, commanding them to erect a court-house and jail, or show cause why they fail to do so.
    
      Fox and Ptigh, Attorney General,
    in support of the motion cited: Swan’s Stat. 740; 49 Ohio L. L. 130; 12 Pet. 614; 2 Eng. Com. Law, 683; Wright, 126, 353; 9 Ohio, 28; 14 Ohio, 256; 19 Ohio, 125, 417; Angelí & Ames on Corporations, 573, 579; 2 Pick. 414; 6 Cow. 518; 8 Parliamentary Cases, 329; 7 Cow. 526; 1 Cow. 377 ; 6 B. & C. 181; 1 Ired. 129 ; 2 Chitty, 254; 1 Barb. S. C. 35; 2 Id. 418; 10 Wend. 393; 23 Wend. 461; 4 Har. & McH. 430 ; 21 Pick. 229 ; 20 Wend. 660 ; 46 Ohio L. L. 267.
    
      G-holson & Groesbeck, contra,
    cited: 3 Burr, 1267; Angelí & Ames on Cor. 630; 1 Ired. 133; 1 Ala. 15; 12 Pet. 524; 3 How. 87 ; 25 Me. 291, 295; Ired. 430 ; Doug. 526 ; 2 Hill, 47 ; Angelí & Ames on Cor. 527.
   Thurman, J.

The statute of 1831, entitled, “ An act providing for the erection of public building,” enacts, that there shall be erected and finished, in each county within this Estate, whenever the commissioners of the county may deem it necessary, a good and convenient court-house, a strong and sufficient jail or prison for the reception or confinement of prisoners and criminals; also, one or more convenient fire-proof buildings, in some convenient place or places near the court-house, in which shall be kept the offices of the clerk of the Supreme Court, Court of Common Pleas, sheriff, recorder of deeds, county auditor, and county treasurer; provided, however, that the commissioners may, at their discretion, provide and finish one or more suitable rooms within the walls of the court-house, or other building, for the use of the whole, or a part of the officers aforesaid; and the commissioners may assign such room or rooms to the sole and exclusive use of such officers as they may deem expedient.” Swan’s Stat. 740.

By the fifteenth section of the act establishing boards of county commissioners, passed March 5, 1831, it is provided, “ That, until pro per buildings are erected at the place fixed on for the permanent seat of justice in any county, it shall be the duty of the county commissioners to provide some suitable place for holding the courts of such county.

It is evident from these statutes that the right to determine when a court-house shall be erected by a county is vested in its commissioners. They must provide a suitable place in which to hold the courts, but it need not be a court-house built expressly for the purpose. They may rent a room or building to be used by the courts, until the time arrive when, in the exercise of a sound discretion, they resolve to erect, and do erect, a court-house. The same thing may be said of the public offices. In relation to these, the section first above quoted enacts that they shall be erected whenever the commissioners may deem it necessary, and the proviso declares that the commissioners aforesaid may, at their discretion, provide and finish one or more suitable rooms within the walls of the courthouse, or other building, for the use of the whole, or a part of the officers aforesaid; and the commissioners may assign such room or rooms to the sole and exclusive use of such officers as they may deem expedient.

*Did the act of January 28, 1851, 49 Ohio Local Laws, 130, deprive the commissioners of Hamilton county of this discretion ? We think not. It simply authorized them to erect public buildings, without destroying or limiting their power, conferred by the general laws aforesaid, to determine when they should be erected. It is clear, therefore, that if no contract had been made for the erection of a court-house, and the case stood upon the provisions of law alone, we could not properly order a mandamus to be issued, commanding a court-house or public offices to be built. To do so would be to usurp the functions of the county commissioners and deprive them of the discretion vested in them by law. We are not asked to grant a mandamus requiring the commissioners to provide suitable rooms for the courts and county officers. That would’present quite a different question from the question whether we can command them to build a court-house and public offices. But were we so asked, no sufficient ground is laid for the application. There is no statement in the relator’s affidavit or proofs that rooms for the courts and county officers are not provided. The only allegations that touch this point, even remotely, are contained in the affidavit, which states that the court-house has been burned, and that there is not at this time any sufficient, safe, depository for the public books and papers of the county, or for the keeping of the records of the courts. This may all be true, and yet no default on the part of the commissioners exist. It is not averred that they refuse or neglect to provide court-rooms, a jail and public offices. It is not even said that they refuse or neglect to build them. For all that appears to us, they may be industriously preparing to do so. The whole ground of complaint in the affidavit is, that they refuse to build a particular court-house and jail. It may be admitted that at the date of the affidavit the court-room and offices in use were not safe depositories of the public records, but where is the showing that this originates in a dereliction of duty on the part of the commissioners ? There is no such testimony, and we can not presume it.

*And as to jail, it is not stated that there is no jail, or an insufficient one, in the county; and if such is the fact, and the commissioners refuse or neglect to provide one, we must have the evidence before us in order to enable us to act.

Does the contract with the Cooks alter the case? "We say nothing here upon the question argued at bar, whether that contract is valid.” Let its validity be assumed, for present purposes, what claim does it give the relator to the writ he seeks? If any individual right had been violated by its breach, it is the right of the Cooks, and they ask for no mandamus. "Were they to do so, it would possibly be a sufficient answer to say that they have no right under the contract to any specific thing; that their whole compensation is to be in money; and that an action at law would afford them a plain and adequate mode of redress. But it is unnecessary for us to say what we would do were they the relators. It is sufficient that Black has no right to prosecute for them. The only ground upon which he can claim to stand is that of the public interest. But how do we know that the'interest of Hamilton county requires the erection of the buildings contracted for? How can we say that her interest will not be promoted by putting an end to the undertaking, and paying the damages consequent upon such a course ? And who has made us the judges of this question-of her interest? But it is said that this is to sanction a repudiation of the contract by the commissioners. It is not so. It is only to say that mandamus is not the proper remedy. "When a court of equity refuses to decree a specific execution of a personal contract, it gives no sanction whatever to its violation. It merely says, this is neither the proper forum nor the proper mode of relief. And so say we in the present case. When the general assembly shall have deprived the commissioners of Hamilton county of their discretion, and commanded them to proceed with the erection of the buildings contracted for, a case will be made for mandamus if the command be disregarded. Until this take place, the decision of the question, whether these particular buildings can be constructed, must *rest in the

sound discretion of the commissioners and the people who elect them. In saying this we do not mean to decide that there is no case in which a right to a writ of mandamus may not grow out of a contract made in pursuance of statutory provision. We only mean to say that this is not such a case ; that the commissioners in question have not been deprived of their discretion; and that, although that discretion is not an arbitrary one, its mere abuse, if such abuse exists, does not authorize us to exercise the discretion ourselves by issuing a writ of mandamus. It is too well settled, by reason and authority, to admit of denial, that the lawful discretion, vested in an individual, officer or corporation, can not be destroyed, or limited by the writ of mandamus. And it -is equally well settled, that before the writ will go to either, a plain dereliction of duty must be established. Ang. & A. on Corp. 656, and cases there cited. Id. 662, 663 and 664, and cases there cited; 12 Ohio, 57; 1 Morris (Iowa), 35 ; 6 B. & C. 181; 9 D. & R. 309.

We see no sufficient ground for the present application, and it is therefore refused.  