
    Commissioners v. Springfield.
    
      W. was treasurer oí C. county from September, 1870, until September, 1872. He was ex-officio treasurer of the city of S. and.of its board of education, and also treasurer of the township of S., in which the city is situated, and of its board of education. As received, he mingled and kept the moneys of these various corporations together. During his term of office there was a deficit. The county commissioners having, at W.’s settlement in September, 1872, found money in the treasury precisely sufficient to satisfy the amount due from W., as such treasurer, to the county, directed the same to be placed to the credit of the county and appropn ated to county purposes. The money was appropriated as directed. Held, that the moneys, so mingled together belonged to the several cox porations pro rata, and the county commissioners could not appropriate the whole to the exclusive use of the county; and that, consequently, the county is liable in equity to account to the other corporations for their proportionate share of the fund so appropriated.-
    Error to the Court of Common Pleas of Clark County. Reserved in the District Court.
    On December 31, 1874, the city of Springfield commenced an action in the court of common pleas of Clark county against the board of county commissioners of Clark county, and others. Issues wore joined, and the cause was heard and judgments were rendered against the board of county commissioners, and in favor of the city of Springfield, the board of education of the city, the trustees of Springfield township, and the board of education of the township. The board of county commissioners filed, a petition in error in the district court, and that court reserved the cause .for decision by this court.
    The facts, so far as it is necessary to state them, are as follows : The city of Springfield, since May 3, 1852, has been a city of the second class, having a population of less than fifty thousand inhabitants. It is the county seat of Clark county, and is within Springfield township. Theodore A. Wick was treasurer of Clark county from the first Monday of September, 1870, until the first Monday of September, 1872. By virtue of his office, according to. the holding of the court below, he was required to collect and disburse the taxes of the city, the city school district, Springfield township, and the board of education of the township, and he was also required to receive and disburse, for the use of the city and the city school districtK any money belonging to them from other sources than taxation.
    Wick, as treasurer, received for each of the corporations named, large sums of money. The moneys so received were not in any way separated, but were mingled together in a common mass. There should have been, at the expiration of Wick’s term of office, $152,861.22, in his hands; but while the money was so mingled, Wick, at different times during his term of office, embezzled and appropriated to his own use $91,001.01, leaving in the treasury only $61,860.26, which was the exact amount then due to the county. If the sum so remaining in the treasury had been distributed to the several corporations in proportion to the interest of each of them therein, the distribution would have been as follows: city of Springfield, $24,792.77; .board of education of the city, $7,906.49; township of Springfield, $1,224.47; board of education of the township, $2,902.77; Clark county, $25,033.76, making, as aforesaid, $61,860.26. But settlement was made by the county commissioners with Wick as treasurer, and finding in the treasury the amount due to the county, $61,860.26, and no more, the commissioners directed that the whole sum be delivered by Wick to his successor, Richard Montjoy, as the money of Clark county. This was done, and, before this suit was brought the money was disbursed by Montjoy and his successor, under direction of the commissioners, in satisfaction of claims clue to clivers persons from the county; but the city and the city board of education demanded their pro rata share of said sum before any part of it had been disbursed.
    "Whether the commissioners actually knew of the deficit before the settlement was concluded, may not be clear from the testimony; but it is certain that they were informed of it before they left the room in which the settlement was made, and before any portion of the money so paid over had been disbursed.
    On September 10, 1872, Wick assigned to John H. Thomas certain property in trust for the benefit of the several corporations named. The sum realized from the property amounted to $26,000, but the sum-of $1,932.02, was distributed to the corporations other than Clark county in excess of their yro rata share of such trust fund. The court of common pleas, at the January term, 1878, in rendering judgment, gave the county credit for the amount that would be due to it on a fro rata distribution of said fund, and found the county to be then indebted to the other corporations, as follows: city of Springfield, $31,718.30; board of education of the city, $9,997.15 ; trustees of Springfield township, $1,070.66; board of education of the township, $3,714.01, making the sum of $46,500.12; and judgments were rendered accordingly, to reverse which judgments this proceeding in error is prosecuted.
    Iieifer, White é¡ HaVoitts and Sjpence <& Arthur, for plaintiff in error.
    Harrison, Olds <& Marsh, for defendants in error.
   Oicey, J.

Wick, by virtue of his office of treasurer of Clark county, was treasurer of the city of Springfield, the board of education of the city, the township of Springfield, and the board of education of the township; and it was the duty of the commissioners, at the September settlement in 1872, to ascertain, not merely whether he had in his custody as such treasurer the amount of money belonging to the county, but also whether he bad the amount due to each of the other corporations named, and to see that the whole was paid over to Ms successor. This is shown by numerous statutory provisions, which admit of no other reasonable construction. It is, therefore, unnecessary to determine whether the commissioners had or had not actual notice of the deficit before the settlement with Wick was concluded. The law having charged them with the duty of ascertaining whether he had in his custody, as treasurer, the funds due from him to these various corporations, the case is to be regarded as though such knowledge had been fully proved.

The question, then, is whether the county of Clark is liable to the city of Springfield and its board of education, and the township of Springfield and its board of education, for pro rata shares of the moneys in the treasury, $01,860.26, appropriated, under direction of the commissioners, to the use of the county. That the moneys of these various corporations were mingled, and that the embezzlement was from the mass, cannot be denied; and it must be further admitted, that the amount appropriated to the use of the county, under direction of the commissioners, was the exact sum due to the county from Wick ; but neither mingling the money, the embezzle'ment, nor the appropriation by the county, had the effect of destroying the interest -of the city, township, and school boards in the sum which was in the treasury at the time of the settlement. Equity will make it available to them by fastening a liability on the county. This would clearly be the rule as applied to individuals, under such circumstances, and there is no reason for saying the same rule does not apply to public corporations. Van Alen v. American National Bank,, 52 N. Y. 1; Matter of Van Duzer's Estate, 41 How. Pr. 410 ; Farmers, &c. Bank v. King, 57 Pa. St. 202 ; Pennell v. Defell, 4 De G., M. & G. 872 ; Cook v. Tullis, 18 Wall. 332 ; Bayne v. United States, 93 U. S. 442; United States v. State Bank, 96 U. S. 30.

A number of other objections urged against the judgments in the court below, have been argued at length. We have carefully considered them, but do not think that any of them are tenable.

Judgments affirmed.  