
    AS TO APPOINTMENT OF COUNSEL FOR COUNTY OFFICERS.
    Circuit Court of Hamilton County.
    Ireton et al v. State of Ohio, Ex Rel Hunt.
    
    Decided, May, 1909.
    
      Legal Counsel — Prosecuting Attorney is, in five First Instance — Legality of Appointment of Assistants — Sections 81/5 and 1271.
    
    In an action in which the board of county commissioners is a party and in which the prosecuting attorney says he is willing and able to prosecute, the board of county commissioners is without authority to employ other legal counsel.
    
      Frank F. Dinsmore and Stanley Struble, for plaintiff in error.
    Hunt, Bettman & Merrell, Prosecuting Attorneys, contra.
    Swing, J.; Gieeen, P. J., and Smith, J. concur.
    
      
       Affirming State, ex rel Hunt, v. Struble et al, County Commissioners, 8 N. P.—N. S., 281, which see for statement of case.
    
   Reading Sections 845 and 1274, Revised Statutes, together, it seems clear that either the prosecuting attorney or legal counsel employed by the commissioners upon the request of the prosecuting attorney under Section 845, must prosecute and defend all suits and actions to which the commissioners are a party. No legal counsel having been employed by the commissioners under Section 845, the statute (Section 1274) says that these duties shall be performed by the proséeuting attorney. He can not refuse to perform the duties imposed by this section, nor is it in the power of the commissioners to employ other counsel to supplant him in the performance of these duties without overruling the clearly expressed intention of the Legislature.

Ireton and Schoenle were employed by the commissioners to defend the suit of Eberhardt v. the Commissioners, a suit pending in the court of common pleas.

Reading Section 1271 with Sections 845 and 1274, it is manifest that the Legislature intended in the first instance that the prosecuting attorney should be the legal counsel of the commissioners, and perform thd duties required to be performed by legal counsel under Section 845, and this is done in all the other counties of this circuit, and no doubt it is done in almost all the counties of the state, the prosecuting attorney being able himself to perform not only the primary duties pertaining to his office, which duties are of a criminal nature, but also to perform the duties of legal counsel for the commissioners, which duties are of a civil nature.

Under the provisions of Section 1271, the prosecuting attorney may appoint such assistants as he shall deem necessary for the proper performance of the duties of his office. These duties primarily are to prosecute all complaints, suits and controversies on behalf of the state, but this provision does not contemplate that he is to appoint assistants to perform the duties of legal counsel for the commissioners. It is clear from Section 845 that, if the prosecutor himself can not perform the duties of legal counsel required' by this section, he shall make this fact known to the commissioners and request them to employ' legal counsel to act for them. ' ,

The reason for this is plain. The commissioners are the executive officers of the county. They make all contracts and represent the county in all actions, and if the legal counsel, the prosecuting attorney elected by the people, can not perform the duties, the expressed intention of the Legislature is that the commissioners should choose whoever they may think best fitted to attend to the business pertaining to the “legal counsel” contemplated by the statute.

In this case it does not appear from the record but what the prosecuting attorney is able and willing to perform »the duties of legal counsel for the commissioners, nor does the record show that the prosecuting attorney has requested the county commissioners to appoint legal counsel, and as the statute requires that all suits or actions for or against the commissioners shall be prosecuted by the prosecuting attorney or legal counsel employed by the commissioners as such, it follows that the employment of Ireton and Sehoenle. as counsel to defend the suit in question was not authorized by law, and the judgment must therefore be .affirmed.

Decision on Rehearing.

A rehearing in this case was granted on account of the Supreme Court having decided Section 845, Revised Statutes, unconstitutional. After a full argument and careful consideration we are of the opinion that the une.onstitutionality of this section does not make invalid the provision of Section 1274 as to .the powers .and duties of the prosecuting attorney. We are further of the opinion that Section 1274 authorizes the commissioners to employ counsel in cases where from any cause the prosecuting attorney can not or will not act as counsel for the commissioners. But the intention of the Legislature seems clear that the prosecuting attorney' shall act as legal counsel for the commissioners in all suits, since Section 845 is no longer valid.

In this case the prosecuting attorney says he is willing and able to prosecute the case in question, and the necessity for the employment of other counsel by the commissioners does not exist. The former judgment will therefore be adhered to.  