
    The Board of Commissioners of Hamilton County v. Noyes.
    1. The capacity cf the county commissioners to sue is not limited to the cases enumerated in section seven of the “Act establishing boards of county commissioners and prescribing their duties. In the cases enumerated in section seven they are not only authorized but required to sue.
    2. "Where a cause of action in favor of the county arises out of a subject-matter within the control of the board of county commissioners, suit may be brought thereon in the name of the board, unless, by statute, the suit is required to be brought in some other mode.
    8. Where work has been done on account of the county, under an agreement with the commissioners, and has been accepted and paid for, no action lies at the suit of the commissioners, in the absence of fraud or mistake, to recover back the money thus paid.
    4. In such action, where it is averred in the answer that the work was done on account of the county, in pursuance of a contract with the commissioners, the presumption is that the contract was duly entered into. If the alleged contract is sought to be impeached by the reply as being void, as against the county, for non-compliance with the requirements of the act of March 9, 1866, relating to the duties of county commissioners . (S. & S. 86), the reply ought to show that the subject-matter of the contract is within the purview of that act. Whether, if the contract were shown to be made in contravention of the act last named, it would make any difference as to there being no right to recover back the money, queere.
    
    Error to the Superior Court of Cincinnati.
    The original action was brought by the plaintiff in error against Edward F. Noyes, the defendant in error. The petition contains several causes of action, all of which are alike except as to the amounts of money paid to the defendant, and the date at which the payments were made.
    The first cause of action is stated as follows :
    1. Plaintiff says that, on the 28th day of November, 1868, at Cincinnati, Ohio, the defendant, while holding the office of Probate Judge of Hamilton county, Ohio, and under color of his said office, with the intent to deceive the auditor of Hamilton county, Ohio, and to defraud the said county of Plamilton, falsely and fraudulently represented to said county auditor, that he, the said Noyes, was entitled to a warrant upon the treasurer of said county, for the sum of $2,280.45, and that, by reason of said false and fraudulent representations of said Noyes, the said auditor was induced to, and did illegally draw and deliver to said Edward F. Noyes, on said day, the said warrant or order, and, on the same day, the said Edward F. Noyes wrongfully, illegally, and fraudulently drew from the treasury of Hamilton county, Ohio, the said sum of $2,280.45, no part of which sum then, or has since become due or owing to said Noyes from Hamilton county, Ohio, on said warrant so illegally issued and drawn as aforesaid, which said sum of money he received, and wrongfully, unlawfully, and fraudulently converted to his own use and has ever since retained for his own use and benefit, and has neglected and refused to refund the same or any part thereof to the plaintiff or to the treasurer of Hamilton county, Ohio; whereby the said Edward F. Noyes, defendant, became, and still is indebted to the county of Hamilton, in the sum of $2,280.45, with, interest thereon from November 28, 1868.
    The answer denied every allegation of fraud and misrepresentation contained in the petition, and then proceeded as follows:
    “ But defendant gays that he has received from the auditor of Hamilton county, as he was lawfully entitled to do, upon orders of the board of commissioners of. Hamilton county, lawfully issued to the defendant, warrants upon the treasurer of said county, for sums of money corresponding in amounts, and in their dates, with the warrants mentioned in said petition, in payment for work done by the defendant, on account of said county, in pursuance of a contract lawfully entered into by the said board of commissioners of Hamilton county with this defendant.”
    The substance of the reply to. the answer is as follows:
    That said pretended contract was illegally entered upon ; that the commissioners were not authorized by any law to contract for the said services; that the said work was unnecessary and uncalled for, and of no value to the county after its completion ; that the said pretended contract was let without -competition, no advertisement for proposals to do the work having been made, and that therefore said pretended contract was by law null and void, and the said-defendant took no rights whatever thereunder.
    The reply was demurred to on the following grounds:
    1. That the plaintiffs had not legal capacity to bring said action; and, 2. That the matters set up by the plaintiffs in their reply, are not sufficient in law to enable them to maintain their aforesaid action.
    The court at special term sustained the demurrer, and rendered judgment for the defendant; and, on error, the court in general term affirmed the judgment. The object of the present proceeding in error is to obtain the reversal. of these judgments.
    
      
      L. W. Goss, for plaintiffs in error:
    The hoard of commissioners had legal capacity to sue. S. & S. § 7, 89.
    The pleadings show sufficient facts to constitute a cause of action. Comyn on Contracts, 316, 318, 352, 407, 409, 411, 424, 429, 436; Blackstone’s Com., 163; 1 Term, 286; Owens v. Davis, 1 Bailey, 315; Douglass Rep. 693; 22 Ohio St. 546; 7 Ohio, 232; §§ 25, 27 of the Code of 1853; State v. Piatt, 15 Ohio, 15; 21 Ohio St. 575.
    
      Taft & Lloyd and George Hoadly, for defendant in error:
    1. The claim to recover is not based upon any contract, express or implied. The pleadings describe a common law tort.
    The principal legislative acts empowering county commissioners to sue, are: Act of 1810, 1 Chase’s Stat. 649; act of 1831, 3 Chase’s Stat. 1799 ; act of 1853, 1 S. & C. 244; act of 1868, S. & S. 89. A careful review of these statutes shows that it was never contemplated giving the commissioners power to sue or be sued in actions of torts. 7 Ohio, 232; 7 Ohio St. 109; 10 Ohio St. 515; 23 Ohio St. 600; 26 Ohio St. 364; 21 Ohio St. 648; 18 Ohio St. 9; 21 Ohio St. 643; 3 Harrison, N. J. 108; 1 Gilman, 567; 12 Conn. 404; 13 Mass. 192.
    2. The commissioners are in no proper sense the trustees of an express trust, hence section 27 of the code does not apply. 31 Ohio St. 301.
    3. It is provided by statute, 1 S. & C. 246, that the county commissioners shall have power to compound for and release in whole or in part any debt due the county; and it is further provided, in 1 S. & C. 98, that “ no claims against the county shall be paid otherwise than upon the allowance of the board of county commissioners upon the warrant of the county auditor.” It is a presumption of law that the county officers have done their duty. Hence in the allowance of this claim, and in issuing the order to the county auditor they simply acted within the scope of their powers, and their action must be regarded as a settlement and conclusive against the county as a final adjustment of this claim.
    
      Crickett et al. v. State of Ohio, 18 Ohio St. 9; 20 Ohio St. 496; 16 Ind. 29; 17 Ind. 437 ; 2 Denio, 26 ; 50 Barb. 573; 67 N. Y. 109; 4 Wend. 453.
   White, J.

Two questions arise in this case :

1. Whether the board of commissioners has legal capacity to sue, assuming a cause of action is shown to exist for the use or benefit of the county.

2. Whether the pleadings show such a cause of action.

The first question, in our opinion, must be answered in the affirmative; the second in the negative.

As to the first question. The seventh section of the act establishing boards of county commissioners as amended March 30, 1868 (S. & S. 89), embraces new subjects, but in all other respects the provisions of the original section are preserved. The section as found in the act of March 12, 1853 (S. & C. 244), is the same as in the act of March 5, 1831. 3 Chase, 1799. The first clause of the section provides, that the boards of commissioners, in the several counties, shall be capable of suing and being sued, pleading and being impleaded, in any court of judicature within the state. Then follows a specification of the cases in which the commissioners are authorized and required to sue in behalf of the county; but this specification was not intended to limit the capacity of the commissioners to sue to the eases enumerated in the section. This is apparent from the limited nature of the cases, as well as from other provisions of the act. Section seventeen of the act of 1853 makes it the duty of the commissioners to sue in cases not enumerated in section seven; and section eleven authorizes them to make contracts in relation to various matters provided for in that section. The power to contract carries with it the power to sue for the violation or enforcement of the contract; and the power to sue on such contracts as the commissioners are authorized to make, can not, with propriety, be limited to the particular instances or causes of action specified in the seventh section.

This section, in the act of 1831, came under consideration in the case of The State, for the use of Hamilton county, v. Piatt, 15 Ohio, 15. That was a suit, instituted by the commissioners of Hamilton county, against the clerk of the court of common pleas and his sureties, on his official bond, to recover damages for his failure to pay into the county treasury certain fines, fees, and costs. The objection was made, that the commissioners were not authorized to prosecute the suit; but the objection was overruled, the court saying that the commissioners of a county can sue for and collect debts due the county, as the representatives or guardians of the county. And, in reference to the suit not being authorized by the seventh section, the court say: “ It is supposed, by defendant’s counsel, that inasmuch as in this section certain cases are enumerated in which commissioners may sue for money due the county, that they are precluded in all other cases. If this be so, then it follows that if a person is indebted to a county in any other manner, payment can not be enforced by process of law. It would not do to establish such a principle.”

It is true the action, in that case, was prosecuted by the commissioners in the name of the state; but this was because the action was on the official bond, which had to be sued in the name of the obligee. The authority of the commissioners, to sue on such bonds, was found in the act of February 23, 1816, entitled “ an act pointing out the manner in which suits may be prosecuted on the bonds of executors, administrators, and officers.” 2 Chase, 955. That act provided, that it should be competent for any person injured” by the misconduct of an officer to institute an,d carry on a suit, in the name of the obligee of the bond, for the use of the person so suing. It was held, in the case cited, that, in legal contemplation, the county was the person injured by the breach of duty on the part of the clerk, and that the commissioners, as the representatives of the county, were authorized to institute suit on the bonds for such injury. The case of Piatt was subsequently approved, and followed in the case of The State, for the use of the commissioners of Crawford county, v. Orr, 16 Ohio St. 522. See, also, Carder v. The Commissioners of Fayette county, id. 352.

Whether the board of commissioners can maintain an action in their own name or not is to be determined by the nature of the cause of action and their relation to the subject-matter out of which it arises; and, it seems to us, the true rule is that when a cause of action for the use or benefit of the county arises out of a subject-matter within the control of the commissioners, suit may be brought thereon in the name of the board, unless by statute the suit is required to be brought in some other mode. This principle is recognized by the cases already referred to, and is well supported by other authorities. Shanklin v. The Commissioners of Madison county, 21 Ohio St. 575; Levy Court v. Coroner, 2 Wall. 501; Overseers of the Poor of Pittstown v. Overseers of the Poor of Plattsburgh, 18 Johns. 406 ; The Supervisor of the Town of Galway v. Stimson, 4 Hill, 136.

As to the second question: There is no denial, in the reply, of the facts averred in the answer, that the warrants were issued, on the order of the commissioners, in payment for work done by the defendant, on account of the county, under a contract with the commissioners. It is alleged, in the reply, that the contract -was illegally entered upon, and that the commissioners were not authorized by law to contract for the services. But of what the services consisted is not stated, nor is there any statement of facts upon which the allegation of illegality and want of authority is founded. As the allegation stands, it is a mere averment of a legal conclusion; and, as a pleading, is of no legal effect or significance. Knox County Bank v. Lloyd’s Adm’r, 18 Ohio St. 353; Railroad Company v. Wilson, 31 id. 555; Rolling Stock Company v. Railroad, 34 id. 467; Miles v. McDermot, 31 Cal. 271.

No fraud is alleged to have been practiced on the commissioners in inducing them to allow the claim and to order its payment; nor is it alleged that the allowance or order was made under any mistake. Now, it certainly requires neither argument, nor the citation of authorities, to show that where work has thus been done, on account of the county, under an agreement with the commissioners, and has been accepted and paid for, that they can maintain no action, in the absence of fraud or mistake, to recover back the money thus paid.

True, it is averred in the petition that the defendant fraudulently represented to the auditor that he was entitled to warrants on the treasury for the amount of his claim. But there is no materiality in this averment. The authority of passing upon the validity of the claim, and of allowing or disallowing it, was not vested in the auditor, but in the commissioners. 1 S. & C. 98, § 13; id. 251, § 38.

It is claimed on behalf of the plaintiff in error, that the contract between the commissioners and the defendant, under which the work was done, is void, under the act of March 9, 1866, relating to the duties of county commissioners. S. & S. 86. The ground on which the contract is claimed to be void is the averment, in the reply, “ that the said pretended contract was let without competition — no advertisement for proposals to do the work having been made.”

The presumption is that the contract was duly entered into; and to make the objection available, the reply ought to show that the subject-matter of the contract is within the purview of that act. All contracts that the commissioners were authorized to make for services to be rendered to the county, are not embraced in the act referred to. This is apparent from the case of The State ex rel. v. Yeatman, 22 Ohio St. 546, relied upon by the plaintiff in error. In speaking of the contract then in question, the court say : We find no statute expressly empowering them ” (the commissioners) “ to make the contract. Nor do we think the power can be implied from the acts of 1851, 1857, and 1859, S. & C. 1282, from which it is claimed in argument. These acts relate to transcribing the county records, for their preservution and use in the offices to which they belong ; and the persons employed to do it are to be compensated at a fixed rate, by the hundred words.”

As already remarked, the character of the work stipulated for in the contract is not set out; and it devolved upon the party seeking to impeach the contract, to plead the facts showing its invalidity.

Ample power was conferred on the commissioners by the act of April 2,1859, supra, to contract for work to be done for the county ; and, in the absence of any showing to the contrary, the power will be presumed to have been lawfully exercised.

Whether, if the contract were shown to have been made in contravention of the act of March 9,1866, it would make any difference as to there being no right to recover back the money paid for the work, we need not decide; but such right is, to say the least, questionable. See Snelson v. The State, 16 Ind. 29 ; The Board of Commissioners v. Saunders, 17 Ind. 437 ; Supervisors v. Briggs, 2 Denio, 26 ; Commissioners of Catawba County v. Selzer, 70 N. C. 426.

Judgment affirmed.  