
    The State of Ohio vs. Samuel Medary and others.
    The sureties in a bond limited in its recital and condition to the faithful performance by the principal, of his duties as a member of the Board of Piiblic Works, cannot be made liable for his defalcation in not accounting for money received as an Acting Commissioner.
    This is a Writ or Error to the Court of Common Pleas of Franklin county.
    The original action was Debt. The declaration states that Timothy G. Bates, now deceased, by a joint resolution of the General Assembly, passed March 16, 1839, was appointed a member of the Board of Public Works of Ohio, for the term of four years from April 1, 1839, and on said 1st April, appointed by said Board an Acting Commissioner thereof. That after-wards, on the same 1st April, the defendants and Bates made their joint and several writing obligatory to the plaintiff, in the sum of $30,000, subject to a condition which, after reciting that Bates had been duly appointed and qualified by the General Assembly at its session of 1838-39, a member of the Board of Public Works for the term of four years, was conditioned that Bates should faithfully discharge the duties of his said office, and account for all moneys intrusted to him as such officer; which bond was approved by the Governor.
    That Bates then entered upon the discharge of the duties of his said office of Acting Commissioner, and continued in such office and to act as such Acting Commissioner from thenceforth until the 1st April, 1842.
    That during the continuance of his said office, and whilst Bates acted as such Acting Commissioner, a large sum of the public money of said plaintiff was intrusted to and received by him, in virtue of his office, to be by him disbursed and accounted for, as such officer, but that he failed to disburse and account for §5,582 84 thereof, and converted the same to his own &c. use,
    There was a demurrer to the declaration, which was sustained in the Common Pleas, and judgment given for the defendants. This is assigned for error in this Court.
    
      Henry Stanbery, Attorney General, for the State.
    The point relied upon by the defendants is, that the condition of the bond recites that Bates had been appointed a member of the Board of Public Works by the Legislature, and provides for the faithful discharge of the duties of that office, and that he should account for all moneys intrusted to him as such officer, whereas he is charged in the declaration as an Acting Commissioner of the Board, and for the non-payment of moneys received by him as such Acting Commissioner.
    The statute in force at the time was the act of March 5, 1839, entitled “ an act to abolish the Board of Canal Commissioners and to revive the Board of Public Works.” Swan’s . Stat. 760.
    The second section of this act creates a Board of Public Works, consisting of five members, to be appointed by joint resolution of the General Assembly, who shall be denominated the Board of Public Works; and that this Board upon their organization, proceed to elect a president and fix the number of Acting Commissioners, not exceeding four of their number.
    The third section vests the charge of all the public works in the State in the Board of Public Works, and invests this Board with all the powers and duties of the Board of Canal Commissioners.
    The 4th section provides that the Board shall enter upon the discharge of the duties of their office on the 1st April, 1839.
    The 5th section requires each member of the Board, previous to entering on the discharge of the duties of his office, to take an oath of office, and that each Acting Commissioner, before he shall receive into his hands for disbursement any public money, shall execute a bond to the State of Ohio, in the penal sum of $30,000, with two or more freehold securities, to be approved of by the Governor, conditioned for the faithful discharge of the duties of his office and for the faithful accounting for all moneys, intrusted to him as, such Commissioner.
    The 13th section gives the Acting Commissioners a salary of $1,500, and the president of the Board a per diem of $3, while engaged in official duty.
    It appears very clearly from these sections, that an Acting Commissioner is at last but a member of the Board of Public Works; it is all one office. Four out of the five members may be Acting Commissioners, or acting members.
    A member of the Board who is not an Acting Commissioner is not required to give bond ; it is only in his character of Acting Commissioner that the bond is required ; for it is only in that character that any money is intrusted to him for disbursement. But although a member of the Board may not be an Acting Commissioner, yet the converse is-not true, for an Acting Commissioner must be a member of the Board. It is not a distinct or different office. It is all one office, but requiring active duty. Only one oath of office is required of a member of the Board, and not one for a member and another from an acting member. The oath as member, covers all the duties passive or active, of the acting member or the passive.
    So too the bond given by a member, covers all the duties of his office, as well those which appertain to a member simply, as those which appertain to an acting member.
    The pleadings admit that Bates, before he gave this bond, was duly constituted an acting member of the Board of Public Works. He was then required by the statute to give an official bond before he should receive any of the public money. The declaration next alleges that the bond was made. The penalty, the obligee, and the condition are all in exact conformity with the statute, and the only objection taken is that the recital only refers to his appointment, by the Legislature, as a member of the Board, and not to his being charged with the duties of an Acting Commissioner.
    
      The statute does not require the bond to be given in the character of Acting Commissioner.
    But if the letter of the statute were that way, I do not that this bond would be considered valid; Barrett v. Reed, 2 Ohio, 412; The State v. Bowman, 10 Ohio, 447; The State v. Findley, 10 Ohio, 53.
    The distinct ground on which the State relies is, that there are not two offices, one of member of the Board and another of Acting Commissioner of the Board. On the other hand the defendants must show the contrary.
    No one can read the act of 1839 and say there are two dis-tint offices — one office created by the Legislature and another created by the Board itself. Simply it is all one office, and that office is that of member of the Board of Public Works, amongst which members, by their own act, after their organization, there is to be a distribution of powers and duties.
    Now suppose that the act did not use the terms “Acting Commissioners,” but provided that the Board upon its organization, should fix and designate which of its members should have the immediate superintendence of certain of the public works and should receive public money to disburse on such works, and give bond for the faithful discharge of the duties of his office, and the payment of all moneys intrusted to him. This is exactly what the act of 1839 does provide for, except that it also designates such member, with such duties assigned to him, an Acting Commissioner. But if the terms “Acting Commissioners” were not used, would there be even a plausible argument that these specific duties, imposed or fixed upon certain members of the Board, created them new officers ? Certainly not. Such new duties would merely be imposed on the member in virtue of his office. Can it then be contended that the name Acting Commissioner, creates a new office ?
    It is argued, for the defendants, that the duties and powers of an Acting Commisioner, are greater than that of a mere member, not fixed and designated- as Acting Commissioner; that he must give bond, may receive public money, and that he gets a large salary.
    
      All this is true. But does it all make a new office ? We say ' it does not. At last it is the same office, with additional duties and additional compensation, to those which belong to the office of the other members, not charged with active duties.
    The provision of the 5th section of the act of 1839, as to the oath of office, is conclusive as to this idea of two distinct offices, or of a double office, and it affords a true key to the proper determination of this question.
    Two things are required to secure the public for the faithful discharge of official duty of their officers, an oath from all, and a bond from such of them as by the arrangement of their duties should be intrusted with public money.
    Now if the statutue contemplated two distinct offices, one of simple member, and the other of Acting Commissioner, we would of course find that each, as such, should make an oath to discharge the duties of his particular office. But what is the provision ?
    “That each member of the said Board of Public Works, shall, previous to entering upon the discharge of the duties of his office, take an oath or affirmation to support the Constitution of the United States, and of the State of Ohio, and faithfully and impartially to discharge the duties of his office.”
    This is the preliminary oath, to be taken by all the members of the Board, before they enter upon the discharge of any official duty — before they can fix or designate any acting member, for that is one official act.
    Now here is one oath for all the members, and binds them all to discharge the duties of their office. One oath and one office.
    Does this oath cover the official duties of a member who is subsequently fixed upon as one of the Acting Commissioners ? No one can deny that it does, and consequently the duties of Acting Commissioner are incident to the only office which the law recognizes.
    But it is said, as a question of intention, it cannot be supposed that these defendants had any idea of becoming bound for the duties of an Acting Commissioner.- Precisely the contrary is manifest from this bond, for the condition is word for word, in the terms which the law requires to be by an Acting Commissioner. The defendants undertake to answer for all moneys which shall be intrusted to Bates, in virtue of his office. Now they are bound to know the law, and must have known, that he could not receive a dollar of money, except when charged with the duties of an Acting Commissioner.
    Constable’s bond given to Township Trustees, held good, though statute provided it should be given to Township Treasurer. Barrett v. Reed, 2 Ohio Rep. 412
    Statute requires that the bond of County Treasurer should be conditioned for the payment, according to law, of all moneys which shall be received in his official capacity. A bond conditioned that the Treasurer should faithfully discharge all the duties of his office, held valid. Ohio v. Findlay, 10 Ohio R. 53.
    Statute provides that County Treasurer shall give bond with four or more freehold securities. A bond executed by the sureties and not by the Treasurer, held valid. Ohio v. Bowman, 10 Ohio Rep. 44T.
    Bond given by Deputy P. M. to P. M. General held valid, though no statute authorizes the taking of such a bond. Post Master General v. Early, 12 Wheat. 136. (Cited 10 Ohio Rep. 449.)
    The statute requires the Receiver of public moneys to give bond with sureties. A writing, not sealed, given by a Receiver and sureties, held valid. U. S. v. Linn, et als. 15 Peters, 240. (Cited 10 Ohio Rep. 451.)
    Bond given by a Purser in the Navy, not specifying his official character, held good, though no such bond authorized by statute. U. S. v. Tingey, 5 Peters, 115.
    2. It is next claimed that Bates ceased to be an officer by the act of March 23, 1840, and a new office was created by that act.
    This is clearly an error. Bates was not legislated out of one office and into another by the operation of that act, and the resolution passed the same day. He was simply continued and in office, and such is the express language of the act resolution.
    3. It is said that if the act of 1840 did not legislate Bates out of office, yet it imposed more extended liabilities than the act of 1839 — in this, that by the act of 1839 there were to be four acting members, whereas by the act of 1840, the number was reduced to three — by which the public money was divided into three parts instead of four — and so Bates would be intrusted with more money under the new law than under the old one.
    If there were anything in such a fanciful point, the answer is, that the old law did not require four acting members. It was not a part of this contract that there should be that number of acting members. It was optional with the Board, under the act of 1839, to appoint four, or any lesser number.
    
      Swan Sf Andrews, for Defendants.
    This suit is brought on a bond which recites that Timothy Bates was appointed by the General Assembly, a member of the Board of Public Works for the term of four years, and its condition is, that Bates shall faithfully discharge the duties of his said office, and account for all moneys intrusted to him as such officer, according to law.
    The bond and its condition is correctly recited in the declaration ; but instead of averring that moneys did come into his hands as such member of the Board of Public Works, and that he failed to disburse and account for the same as such officer, the declaration proceeds to aver as follows:
    That Bates was appointed by the Board of Public Works, an Acting Commissioner.
    That Bates entered upon the discharge of the duties of his said office of Acting Commissioner; that moneys came into his hands in virtue of his said office of Acting Commissioner, and at he failed to disburse and account for the same as such of-There is no ambiguity in the terms of the Bond — no doubtful word or expression which can enlarge its condition by construction.
    Now if the powers and duties of a member of the Board of Public Works and Acting Commissioner are not identically the same ; and if “ member of the Board of Public Works ” and “ Acting Commissioner ” are not synonymous terms designating, under the statute, the same office and the same duties and powers, then it is clear that the declaration is bad; for the declartion treats the condition of the bond as providing for the discharge of the duties of the office of Acting Commissioner, and the breach is assigned on that office ; whereas the bond and its recitals are limited to a member of the Board of Public Works.
    That the powers and duties of a member of the Board of Public Works and Acting Commissioner were distinct and different, is obvious.
    By reference to the statute, (Swan’s Stat. 760,) it will be seen, that the Board of Public Works are invested with deliberative and legislative duties relating to the Public Works of the State. A member of the Board of Public Work, by virtue of his appointment to that office, formed a constituent part of the Board of Public Works.
    An Acting Commissioner of the Board of Public Works was a fiscal and executive officer in all that related to the Public Works of the State, appointed by the Board from its own members. Thus: The Board appointed subordinate officers and prescribed their duties. Swan’s Stat. 760, <§> 45.
    The Board had general superintendence of the Public Works of the State, &c. <§> 46.
    These powers and duties devolved on the members of the Board of'Public Works as such.
    An Acting Commissioner as such could not exercise these powers nor were they duties incident to his office.
    Now the declaration claims that a bond by a member of the Board of Public Works as such officer, conditioned to discharge the duties of that office, is forfeited because the officer did not perform duties which as a member of the Board of Public Works he had no authority to perform and was not bound to perform.
    Bates did not become an Acting Commissioner by being appointed by the General Assembly a member of the Board of Public Works, any more than a member of the House of Representatives becomes the Speaker by being elected a member. Neither the powers nor the duties of Acting Commissioner devolved upon him by that appointment. So that he might in compliance with the condition of this bond “faithfully discharge the duties of his office of a member of the Board of Public Works and account for all moneys in trusted to him as such member of the Board of Public Works,” yet fail wholly in his duties as Acting Commissioner, and fail to account for moneys intrusted to him as Acting Commissioner.
    The declaration itself is founded upon this precise idea; and hence the recital of the bond and its condition is attempted to be enlarged so as to cover as well the duties which devolved upon Bates by virtue of his appointment by the General Assembly to the office of a member of the Board of Public Works, as the duties which were devolved upon him by virtue of his designation by the Board an Acting Commissioner — duties wholly different and distinct.
    We understood the counsel on the other side, in his argument below, to concede that the powers and duties of a member of the Board, and an Acting Commissioner are' distinct; and that those which devolve by law upon an Acting Commissioner, cannot be exercised by a member of the Board by virtue of his appointment by the General Assembly. Whether now-conceded or not, it is obviously true. But Mr. S. contended that the designation of an Acting Commissioner by the Board was simply a distribution of the powers of the members of the Board; that the Acting Commissioner, by being designated as such, acquired no powers and performed no duties other than as a member of the Board of Public Works, and by virtue of the powers and duties devolved upon him by his appointment by the General Assembly.
    This position assumes what is not true in fact; for the Board as such, or a member of the Board as such, clearly could not exercisé the powers of an Acting Commissioner. When, therefore, they designate or appoint an Acting Commissioner, they do not distribute their own powers nor their own duties. Their power consists simply in designating the Acting Commissioner, as the power of the General Assembly, under the law, consists in designating the members of the Board of Public Works, and in both cases the law points out their powers and duties.
    To hold that the Board or its members distribute powers and duties which they did not themselves possess, and as such could not exercise, is confounding the difference between the power of appointment and the official powers and duties of the officer appointed.
    To overrule the demurrer it is necessary for the Court to decide that when it is said in a sealed instrument that Bates is appointed by the General Assembly a member of the Board of Public Works, and that sureties will be responsible for the duties which devolve upon him as a member-of the Board, it means that the sureties will not only be responsible for the performance of duties which a member of the Board is bound to perform by virtue of his appointment to that office by the General Assembly ; but will also be responsible for the performance of duties which Bates could not perform, and was not bound to perform by virtue of his appointment to that office by the General Assembly.
    We add a few authorities upon the rules adopted by Courts in the construction of bonds and contracts executed by sureties :
    
      Bell v. Bruen, 1 Howard’s U. S. Rep. 184, 186; Arlington v. Merricke, 2 Saund Rep. 403 ; Liverpool Water Works Co. v. Harpley, 6 East. 507; Wardens &fc. v. Bostock, 2 Bos. & Pull. 175Laidley v. Evans, 2 Bing. Rep. 32 ; Pepin v. Cooper, 2 Barn. & Aid. 431; Myers v. United States, 1 McLean, 495 ; Milton v. Stewart, 9 Wheat. 702.
   Read, J.

The recital in the condition of the bond is that ga^eg was ¿u]y appointed a member of the Board of Public r . . . and the condition, in substance that he should faithfully discharge the duties of such office, and account for all moneys intrusted to him as such officer. The breach assigned is that he failed to account for moneys which came into his possession as one of the Acting Commissioners of said Board. It is contended that the breach is broader than the condition, and that the declaration seeks to make the sureties liable for a default of their principal not within the letter of the bond. It is replied that the duties of Acting Commissioner are embraced within the scope of the duties of a member of the Board, and are included in the words of the condition of the bond. But it is conceded, that as a mere member of the Board, Bates would have no control of the public money, and as such nono by law could come into his possession. To authorize him to receive and disburse money, he must be both a member of the Board and an Acting Commissioner designated by the Board itself. The duties, then, of a member of the Board merely, stops short of the receipt of money. To receive money requires in addition that he should be an Acting Commissioner. There is then a difference in power and duty in being a single member of the Board, and a member of the Board and Acting Commissioner. This embraces only the duties of a member of the Board; and to make it embrace the duties of Acting Commissioner also, it must be enlarged beyond its letter. Now if the condition of the bond had been for the faithful performance of the duties of Acting Comsioner, there might be plausibility in the argument that i't included all the duties of a member of the Board, as no one could be an Acting Commissioner who was not a member of the Board. These two are inseparable. But one may be a member of the Board and not an Acting Commissioner. Now one thing is perfectly clear, that the duties and powers of a member of the Board, and the duties and powers of an Acting Commissioner, are different and distinct, and the risk and liability of sureties for one or the other are also entirely distinct. In the one instance the risk and liability of the sureties, would be as merely nothing, and in the other might be of great hazard and peril. The duties of a mere member of the Board are those judgment and deliberation, the other, of pecuniary accountability. How then can a bond conditioned for the performance of the duties of an office, of merely a moral nature, be extended and embrace a liability to account for money ? But it may be said, in this instance, if the bond do not embrace the latter, it embraces nothing; and that the officer who took it failed in intelligence. The reply to all this is, that the bond speaks for itself ; and the law is that it shall so speak ; and that the liability of sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond, and if the words will not make them liable, nothing can. There is no construction, no equity against sureties. If the bond cannot have effect according to its exact words, the law does not authorize the Court to give it effect in some other way, in order that it may prevail. It is not like a grant, where every thing is construed most strongly against the grantor, and where the intent governs, and will be sought after from the object, or extrinsic facts, to give such construction to words as to carry into effect the intention of the parties.

But it is argued the office is the same, and the designation of Acting Commissioner is a distribution of duties. This is not so. It is the union of distinct duties and powers in the same person. The letter of the bond includes one class of these duties and powers, and it is attempted to extend them to embrace a different class. The fact that no one is eligible to be designated as Acting Commissioner but a member of the Board, no more ■ makes a member of the Board an Acting Commissioner, than the fact that no one but a voter is eligible to a seat as a member of the General Assembly, constitutes every voter a Representative. It is not a case of distribution of powers and duties, but a designation of the person to exercise and discharge certain powers and duties. Without such designation, no person would be authorized to act; so that the Board of Public Works is divided so far as duties and powers are concerned, into mem- ’ bers of the Board and Acting Commissioners. The members of the Board qualify by taking the prescribed oath — the Acting Commissioners by executing the prescribed bond. The one embraces motive and judgment, the other, in addition thereto, the faithful accounting for money. The fact that but one oath is required, does not prove that they are one office. The statute says, that no one shall enter upon the duties of a member of the Board until he has taken an oath, and that no one shall enter upon the duties of an Acting Commissioner until he has executed bond; but the fact that no one is eligible to be designated as Acting Commissioner but a member of the Board, and no one can act as a member of the Board until he has taken an oath, does not prove that because there is but one oath, there is but one office, for the reason that an office may exist whose duties are guarantied by bond and not oath, as in the present instance; and that distinct offices may unite in the same person, the duties of which are guarantied in different modes.

The duties and powers of a mere member of the Board and of an Acting Commissioner being wholly distinct, a majority of the Court are perfectly clear that a bond limited in recital and condition to the duties of a member of the Board, cannot be extended to embrace and render the sureties liable for the defalcation of an Acting Commissioner. A mere member of the Board has no authority to receive money. This is a principal duty of an Acting Commissioner. Hence a bond limited to a member cannot be extended to embrace the defalcation of an Acting Commissioner.

We therefore affirm the judgment of the Court below.

Hitchcock, J.,

dissenting. Not concurring in the opinion expressed by the majority of the Court, I deem it proper to state the reasons which have brought me to a different conclusion.

The original action in this case is an action of debt upon bond. The bond was intended to be in conformity with the 5th section of the act of the 5th of March, 1839, “ to abolish the Board of Canal Commissioners, and to revive the Board Public Works; ” Swan’s St. 760. It bears date on the 1st of April, 1839, and was approved on the 20th day of the same month by the Governor of the State. The defendants are sureties in the bond for Timothy G Bates, principal. The com dition is “that whereas Timothy G. Bates, has been duly appointed and qualified, by the General Assembly of the State of Ohio, during its session of 1838 and 1839, as member of the Board of Public Works of the State of Ohio, for the term of four years. Now if the said Timothy G. Bates, shall faithfully discharge the duties of his said office, according to law, and shall faithfully account for all money entrusted to him as such officer, according to law, then and in that case this bond to be void, otherwise to be and remain in full force and virtue,” &c.

The declaration recites the appointment of Bates as member of the Board of Public Works for the term of four years, from and after the first day of April, 1839, that on the day last aforesaid he was designated by the Board as Acting Commissioner thereof; that afterwards he gave bond, with defendants as his sureties, and sets forth the substance of the bond and of the condition. It is further alleged that Bates, in virtue of his office, received large sums of money, to wit: the sum of fifty thousand dollars, that he has failed to disburse and account for said money, and that $5,582 84 remains in his hands, unaccounted for.

To this declaration there was a general demurrer, which was sustained in the Court of Common Pleas, and judgment entered in favor of the defendants. To reverse this judgment this suit is now prosecuted.

Although a variety of questions have been incidentally discussed in the present case, yet the question upon which the case turns, is narrowed down to this: did Bates, when he received the money, as stated in the declaration, receive it as a member of the Board of Public Works, or did he receive it in some other capacity. Counsel for defendants insist that although he was a member of that Board, yet that he did not receive it suc'n member, but as an officer of a different character, that ’ . as Acting Commissioner of that Board, and such is the opinion of a majority of the Court. Or perhaps it is more proper to say that the simple question raised in the case is, whether the bond in controversy is a void instrument. It was intended to be a statutory bond, and by those who, at the time of its execution, administered the government of the State, was supposed to be in conformity with the statute upon the subject. This opinion, it seems to me, was well founded, and I am brought to this conclusion by a careful examination of the statute.

Before proceeding further, it may be well to remark, that there is no difference of opinion as to the law relative to sureties. They cannot be bound beyond the scope of their understanding. Yet in ascertaining the extent to which they are bound, the same regard must be had to the intention, as derived from the language used in an instrument, as is the case in the construction of all other instruments ; I Ohio Rep. 170 ; 5th do. 176. Nor does the fact that the condition of a bond is more comprehensive in its terms than is required by the statute, vitiate the instrument; 10 Ohio R. 51.

As before remarked, the ground of defence is that Bates, the principal, did not receive the money specified in the declaration as member of the Board of Public Works, but as Acting Commissioner ‘of that Board, and it is insisted that the office of member of the Board of Public Works, and of Acting Commissioner, are separate and distinct offices. And further, that under the law it was not required that a member of the Board, as such, should give bond, that a bond was to be given only by the Acting Commissioner. To me it seems that there is but one office, and that when the Legislature speak of Acting Commissioners, they have reference only to the duties to be performed by different members of tho Board,' and those duties must, under the law, be performed by members of the Board; None other than a member can be Acting Commissioner.

By the first section of the act of March 5th, 1839, a pre-existing law, establishing a Board of Canal Commissioners, is re'pealed, and that Board abolished. (Swan’s Stat. 760.) ous to this time, the canals and other public works of the State had been under the charge of a board, sometimes called the Board of Canal Commissioners, sometimes the Board of Public Works. Some of the members of the Board were merely advisory members, others were denominated Acting Commissioners.

In the second section of the aforesaid'act, it is enacted, “ that for the purpose of promoting and maintaining a general system of internal improvement within this State, and of uniting all the various branches under the same supervisors and direction, there shall be created a Board of Public Works, consisting of five members, tobe appointed by joint resolution of the General Assembly, who shall be denominated the Board of Public Works,” &c. It is further provided that the Board shall upon their organization proceed to elect a President, who shall keep an office at Columbus, and “ that said Board shall have the power to fix the number of Acting Commissioners, not to exceed four of their number.”

The third section is as follows, “ the charge and superintendence of the canals of this State, of that part of the national road, which has been or may hereafter be completed, and received by the State, and all other works of internal improvement that have been or may be undertaken, in whole or in part, by the State, shall be and they are hereby vested in said Board of Public Works; which Board is hereby invested with all the powers, and required to perform all the duties, heretofore conferred upon the Board of Canal Commissioners, and superintendant of the national road, by the laws of the State now in force, and such other duties as may from time to time be in-joined upon it, by the present or any future Legislature, and shall from time to time present to the consideration of the General Assembly, such objects of internal improvement as they shall judge the public interest may require.”

By the fifth section, the members of the Board are required to take the necessary oaths of office, and it is further required that before an Acting Commissioner shall be allowed to receive any money for disbursement, he shall give bond with security, &c.

Throughout the whole of this act the members of the Board of Public Works are spoken of, are treated as Commissioners, and in no part of it are any peculiar duties prescribed to be performed by those denominated Acting Commissioners. The general duties to be performed by the entire Board are specified, and all the members belong to, and constitute a part of the Board. For the superintendence of distinct parts of the works, different individuals must be designated, but in such superintendence the individual superintending, acts in no other capacity than as member of the Board. His authority is not derived from any appointment of the Board, but from his appointment by the General Assembly. All were in fact Acting Commissioners, if we except the President who was to keep his office at Columbus. The Board was constituted of five members, one of which was to be President, and power was given to this Board to “ fix the number of Acting Commissioners, not to exceed four of their own number.” The Board could fix the number, but if the number fixed was less than four, it had not power to say who should in fact be the Acting Commissioners. In this respect the Board was powerless. Looking at the statute in all its parts, I can have no doubt that the General Assembly intended, notwithstanding what is said in the second section, about fixing the number, that all the members of the Board, exclusive of the President, should be Acting Commissioners. It was so understood by the authorities of the State at the time, and therefore the bond now in suit was executed in the form in which it is set forth in the declaration. A member of the Board of Public Works, and an Acting Commissioner, as he was one and the same person, held but one and the same office.

That it was the intention of the General Assembly that all the members of the Board, with the exception of the President, should be Acting Commissioners, is more fully manifested by the 12th section of the act, which provides that each one of the Acting Commissioners should receive a salary of fifteen hundred dollars per year, and the President a per diem allowance of three dollars while engaged in the duties of his office. But no compensation is provided for any member of the board who is neither President nor Acting Commissioner. Such compensation would undoubtedly have been provided had it not been well understood that ample provision was already made.

In pursuance of the intention of the General Assembly the four members of the Board of Public Works, appointed in March, 1839, proceeded to discharge their duties as Acting Commissioners. I infer this from the fact that at the next session of the General Assembly, that body enacted a law, of which the following is the 6th section, “ The General Assembly now in session, shall designate by joint resolution, three out of the four acting Commissioners, now in the service of the State, that shall be retained in office, with the term that each shall hold his appointment,” &c. (Swan’s Statutes, 764.)

Now, although the phraseology of this statute is somewhat obscure I can come to no other conclusion with respect to its meaning than such as is before stated. If I am correct in this it follows that Bates, the principal in the bond now in suit, was an Acting Commissioner, not in virtue of any appointment received from the Board of Public Works, but in virtue of his appointment as a member of that Board. He received no other appointment; by the law he could receive no other. There was in fact but one office. As a member of that Board he executed his bond, with the defendants as his securities. As a member of that Board he received the moneys of the State, and the defendants as his securities undertook that he should account for it. This he has failed to do, and it seems to me that upon every principle of law and justice, the defendants as his securities, should in conformity with the legal effect of their undertaking, be made responsible for the defalcation. well understood the nature and extent of their undertaking, and they ought not to escape from its obligation by any mere technical objection.

In my opinion the Judgment of the Court of Common Pleas should be reversed.  