
    STATE ex BUTLER CO BAR LIBRARY ASSN v KEMPF
    Ohio Appeals, 1st Dist, Butler Co
    No 658.
    Decided May 27, 1935
    John F. Neilan, Hamilton, and Harry J. Koehler, Hamilton, for relator.
    Fred J. Sehatzman, Middletown, for respondent.
   OPINION

By HAMILTON, J.

It is the duty of the clerk of the Municipal Court of Middletown to pay monthly to the said Library Trustees such fines and penalties assessed and collected for offenses and misdemeanors, prosecuted in the name of. the State, of Ohio in the Municipal Court of Middletown, excepting such portions as provided in the act.

There is no allegation in the petition that the said clerk has in his hands the sum of $3841.75, theretofore collected. It may be he has no part of the sum sought to be ordered paid over. An action for' money due cannot be collected through a writ of mandamus.

In the absence of an allegation that the clerk has in his hands the sum of money claimed or any part thereof, the demurrer to the petition will have to be sustained.

Whether or not the clerk is personally liable for the failure to pay the money over, as provided by law, is not before the court.

While the court is of the opinion that it is a mandatory duty of the clerk to pay the money to the trustees of the Library, in the manner and portion provided by §3056, GC, we are not in a position to grant a writ in this case of binding force and effect.

The writ is denied.

ROSS, PJ, and MATTHEWS, J, concur.  