
    State of Ohio for the Use of Clark County v. Collins et al. State of Ohio for the Use of Clark County v. Hinkle et al. State of Ohio for the Use of Clark County v. Twitchell et al.
    
      Copies to be filed with pleading — Evidence of indebtedness — 6Vc-tions 5085 and 5086, Revised Statutes — Action upon official bond of county commissioner — To recover indemnity — On account of negligence of board of county commissioners.
    
    1. Sections 5085 and 5086, Revised Statutes, authorize a pleader to attach copies of accounts or of such instruments only as are evidence of indebtedness existing at the time of their execution, or are instruments for the unconditional payment of . money only.
    2. A11 ' action cannot be maintained upon the official bond of a county commissioner to recover indemnity to the county on ., , account of damages which it has been compelled to pay for injuries to persons and property resulting from the negligence of the board of county commissioiiers in maintaining a highway.
    (Nos. 11965, 11966, 11967
    Decided June 7, 1910.)
    Error to the Circuit Court of Clark county.
    ’ The defendants, Collins and Hinkle, and Twitch-ell, the testator of Virginia Twitchell, executrix, were the commissioners of Clark county. These suits were brought on their official bonds, other defendants being their several sureties, to recover indemnity to the county for a liability which it has been compelled to discharge on account of injuries1 to persons and property resulting to the occupants of an automobile, and to the car, by ■being precipitated into the bed of a stream from which a highway bridge had been removed by the commissioners and the space carelessly and negligently left unguarded. In the court of common pleas demurrers to the several petitions were sustained and final judgments rendered in favor of the defendants. In the circuit court the judgments were affirmed.
    
      Mr. Lawrence E. Laybourne and Mr. John B. McGrew, for plaintiff in error.
    Is a member of the board of county commissioners liable on his bond to the county for damages suffered by it because of the negligence and carelessness of said board in failing to keep a bridge or road in proper repair, said bond of said commissioner being conditioned “for the faithful discharge of his duties, and for the payment of any loss or damage that the county may sustain by reason of his failure therein ?”.
    One of the official duties of the board of county commissioners is to construct and keep in repair all necessary bridges and approaches thereto over streams on county roads. This duty is mandatory. Sections 860 and 861, Revised Statutes.
    The liability of the defendants is found in the provisions of Section 844, Revised Statutes, which provides the condition of the bond of a county commissioner.
    At common law county commissioners are not officially liable to parties injured by a negligent and careless discharge of their official duties. 
      Commissioners v. Mighels, 7 Ohio St., 109; Finch v. Board, 30 Ohio St., 37; Overholzer v. National Home, 68 Ohio St., 236; Board v. Storage Co., 75 Ohio St., 244.
    In 1894 the legislature determined that for negligence and carelessness in the discharge of certain official duties, the commissioners should be officially liable, to-wit, for negligence and carelessness in failing to keep county roads and bridges in proper repair. This liability is provided for in Section 845.
    There is no liability for any other official negligence or carelessness. Ebert v. Commissioners, 75 Ohio St., 474; Commissioners v. Mighels, 7 Ohio St., 109.
    It is submitted that the legislature intended “to exact indemnity” from the commissioners when it required the condition in their bond provided for in Section 844.
    It is a cardinal rule in the interpretation of statutes that the intent of lawmakers is to be sougffit first of all. Slingluff v. Weaver, 66 Ohio St., 621.
    It is also the duty of the court to give effect to a statute when that can be done. The provision of Section 844 not only requires the faithful discharge of the official duty of the commissioners, but also that he pay any loss or damage that the county may sustain by reason of his failure therein.
    Did not the legislature intend that the commissioners’ should indemnify the county for damage suffered by it through their carelessness in the discharge of certain duties? If not, why was such a law passed, for such a provision is not found in any other statute providing for county official bonds. Carpenter v. Sloane, 20 Ohio, 327.
    It is submitted that Clark county had a right to rely upon the official acts of its county commissioners, to rely upon their official duties being faithfully and carefully, not “improperly or negligently” discharged. State v. Alden, 12 Ohio, 59. That a member of a board cannot shirk his official responsibilities by delegating the performance of his official duties to some other member of the board. To counties are delegated in a large measure the duties of local administration, and within their jurisdiction stand in the place of the state. Commissioners v. Church, 62 Ohio St., 318.
    
      Messrs. Hagan & Hagan and Mr. William M. Rockel, for Collins et al.
    
      Messrs. Keifer & Keifer, for Hinkle et al.
    
      Messrs. Martin & Martin, for Twitchell, Exrx., et al.
    The main claims presented in their respective briefs, by the counsel for defendants in error, county commissioners, are:
    An officer acting in an official capacity, under the common law, was not liable to any individual for negligence in the discharge of his official duty.
    Until the year 1894, the board of county commissioners was not liable for neglect in failure to keep roads,. etc., in repair. In 1894, Section 845, Revised Statutes, was amended and created a liability against the board “in their official capacity,” for damages received by reason of negligence of the commissioners in keeping roads or bridges in repair.
    ' Prior to this amendment, no action would lie against the county or board of county commissioners in their official capacity for two reasons.
    
      First: Because in a leading case, this court had held, that the board of county commissioners. is a quasi corporate body, and as such, could not be held liable for damages resulting to ,a private party, by the negligence of its officers in the discharge of their official functions. Commissioners v. Mighels, 7 Ohio St., 110; Finch v. Board, 30 Ohio St., 37.
    In neither 'of these cases was the injury the result of a defective bridg'e or highway.
    
      Second: The second reason, why the board prior to the amendment would not have been liable, is because no actionable wrong' had been committed, and it is proper here to say, that although the commissioners have had charge of the public highway since the organization of the state, there is no reported case of there ever having been a suit against them, for a liability, which resulted from a defective bridge or highway. But it is well settled, that at common law, there was no such liability. Dunlap v. Knapp, 14 Ohio St., 69; Smith v. Commissioners, 29 C. C., 611; McConnell v. Dewey, 5 Neb., 385; Young v. Commissioners, 2 Nott & McCord, 537; Nagel v. Wakey, 161 Ill., 387.
    In the absence of statute, expressly making the commissioners individually liable for a wrong resulting from a defective highway, their individual non-liability might rest upon either one of the following grounds:
    
      First: There was no actionable wrong committed.
    
      Second: The commissioners were not liable individually because if any right or duty in this respect had been recognized by statute, a delinquency in that respect was covered by the penalty prescribed by the statute for failure to perform the duties enjoined. Section 6915, Revised Statutes ; Dunlap v. Knapp, 14 Ohio St., 64.
    
      Third: The statute places no duty upon the commissioners, in their individual capacity to repair the bridges. Whatever was required to be done in the repair of bridges, as applicable to the present case, was required of the board, in its corporate capacity. Section 860, Revised Statutes; Commissioners v. Butt, 2 Ohio, 348.
    
      Fourth: That the commissioners are quasi judicial officers, and not liable individually in any case unless they act maliciously or from a corrupt motive. Thomas v. Wilton, 40 Ohio St., 516; Gregory v. Small, 39 Ohio St., 346; Stewart v. Southard, 17 Ohio, 402; Ramsey v. Riley, 13 Ohio, 157; State v. Bair, 71 Ohio St., 427; Board v. Commissioners, 113 N. Car., 379; Palmer v. Town, 24 N. H., 314; Waldron v. Berry, 51 N. H., 136; Boseker v. Commissioners, 88 Ind., 267; Daniels v. Hathaway, 65 Vt., 247; Hunter v. Mobley, 26 S. Car., 192.
    There is no reported case in Ohio, showing an action brought seeking to hold a commissioner individually liable, for an injury occurring on a highway, and after diligent search, and a challenge made to the opposition, no such case has been found or cited in the court of any other state.
    Since the passage of Section 845, Revised Statutes, which fixes a limited liability on the board of county commissioners for failure to keep roads in repair, there have been several decisions, all of which would tend to support the proposition for which we contend — that the statute did not create c. personal liability against county commissioners for negligence, and that no such action can be maintained in the absence of a claim that there was corrupt intent. Alexander v. Brady, 61 Ohio St., 177.
    If, then, they are liable only as the statute imposes, we must find some language there which authorizes that which did not exist theretofore.
    . When a new liability is created by statute which did not exist theretofore, the law will not be extended beyond its terms, as it would be in derogation of the common law. Ebert v. Commissioners, 75 Ohio St., 479; Board v. Storage Co., 75 Ohio St., 244.
    Section 845, Revised Statutes, relates entirely to the actions of the board of commissioners in their corporate capacity, and not what they might do, or what they might not do, as individuals.
    So, unless this statute is to be extended beyond its plain terms, no individual liabilitv can flow therefrom.
    Where a statute creates a new right, or imposes a new duty, or liability, unknown to the common law, and at the same time gives a remedy for its enforcement, the remedy so prescribed is exclusive. Zanesville v. Fannan, 53 Ohio St., 605; Railway 
      
      Co. v. Hine, 25 Ohio St., 629; Madden v. Lancaster, 65 Fed. Rep., 188; Hodges v. Tama Co., 91 Ia., 581; Cole v. Muscatine, 14 Ia., 296; Harrington v. Glidden, 179 Mass., 486; Abel v. Minneapolis, 68 Minn., 89; Rochester v. Campbell, 123 N. Y., 414; 2 Lewis’ Sutherland on Statutory Construction, Section 572.
    It follows, therefore, that in order to create a liability in favor of the county, the statute must specifically so state. White v. Inhabitants, 51 Mass., 108; First Parish v. Fiske, 62 Mass., 264.
    It is a well-settled doctrine that official bonds do not create a liability, nor cast upon the official any additional duty, responsibility, or liability which was not otherwise by law cast upon him. State v. Chadwick, 10 Ore., 465; Murfree on Official Bonds, Section 494; State v. Blake, 2 Ohio St., 147.
   Si-iauck, ■ J.

With respect to the obligatory terms of the official bonds upon which the petitions count, they allege only that the principal defendant in each case and his sureties who were joined with him gave bond to the state of Ohio in the sum of $5,000, conditioned for the faithful discharge by the principal obligor of his official duties as county commissioner of Clark county, and to pay any loss or damage that said county might sustain by reason of his failure therein during the term for which he was elected. In lieu of further allegations in that regard the petitions set out full copies of the bonds, including the approval by the prosecuting attorney of the terms of the bonds and by the probate judge of the sufficiency of the sureties and the official oath thereon endorsed. Not only is this mode of pleading instruments of this character unauthorized, but it is forbidden by the familiar rules that a petition should contain “a statement of the facts constituting the cause of action, in ordinary and concise language,” and that evidence should not be pleaded. These instruments, not being for the unconditional payment of money, nor evidence of indebtedness existing at the time of their execution, are not within the provisions of Sections 5085 or 5086, Revised Statutes. They unnecessarily encumber the record, and they do not make it the duty of the court to examine the evidence thus pleaded to see whether it would have sustained other allegations of obligation if they had been made. The rule upon the subject was precisely stated by Judge Gholson in Lynd & Morton v. Caylor, 1 Handy, 576: “Except in the cases specially authorized by the code, each petition should embody in itself, and without reference to any other paper or exhibit, the facts which constitute the cause of action.” Crawford & Morrison v. Satterfield, 27 Ohio St., 421.

The obligation of the defendants in the several cases is alleged to be that the principal and his co-defendants as sureties, “gave bond to the state of Ohio in the sum of $5,000, conditioned for the faithful discharge by the said [naming the principal] of his official duties as county commissioner of Clark county; Ohio, and to pay any loss or damages that the said Clark county, Ohio, might sustain by reason of his failure therein during the term for which he was elected aforesaid.” With respect to the breach of the obligation the petition alleges, in substance, that the board of county commissioners, of which the principal defendant was a member, caused a bridge which spanned a stream on a highway under the control of said board, to be removed and carelessly and negligently and willfully left the embankments and the open space between them unguarded, in consequence whereof injuries resulted to the persons and property of persons traveling upon the highway, for which the county was liable under the statute, and that in the discharge of that liability the county paid the sums for which a recovery is sought. The legal force of the word “willfully” will not be overestimated when it is remembered that it is used in an allegation of mere omission of duty. The question is, whether an individual member of a board of county commissioners is liable for negligence of the board of which he is a member which results in a liability to the county. The briefs are in entire accord upon the proposition that according to the accepted law of the state, counties were not liable on account of the negligence of the commissioners prior to the act of April 13, 1894 (91 O. L., 142), when Section 845, Revised Statutes, was so amended as to impose a limited liability by the provision that “any such board of county commissioners shall be liable in its official capacity for any damages received by reason of its negligence or carelessness in keeping any such road or bridge in proper repair.” This statute should not by construction be extended beyond the plain meaning of its terms. Commissioners of Morgan County v. The Marietta Transfer & Storage Co., 75 Ohio St., 244; Ebert v. Commissioners of Pickaway County, 75 Ohio St., 474. It is entirely clear that this statute does not, in any way, enlarge or change the terms of the bond, or enlarge the duties of the individual commissioners, although it adds a new consequence in the particular indicated to negligence in the performance of their duties. Not only the duties of the commissioners, but the terms and purposes of the bond which they individually give remain as they were before the amendment. By the express terms of the statute the consequence provided for attaches to the board “in its official capacity,” and not to its individual members. It is consistent with the allegations of the petition that the negligent course of the board, on account of which a liability is asserted upon the bond of the individual member, was taken without his concurrence. It seems to be decisive of the case that the negligence was that of the board, while the bond is for the faithful performance of the duty of the individual. If inquiry should be extended further, it might appear that the negligence alleged as the foundation of the actions is not unfaithfulness in the sense in which that word is used in official bonds. If doubt should remain it would be difficult' to resolve in favor of the conclusion that such a liability as is asserted in these petitions has been assumed by officers who serve for the compensation which the statute attaches to the office of county commissioner.

Judgments affirmed.

Summers, C. J., Crew, Spear, Davis and Price, JJ., concur.  