
    APPEAL — COUNTIES.
    [Cuyahoga (8th) Circuit Court,
    July 19, 1909.]
    Marvin, Winch and Henry, JJ.
    State ex rel. McClain v. Coshocton Co. (Comrs.) et al.
    County Commissioners’ Right to Dismiss Appeal Notwithstanding Prosecutor Opposed.
    County commissioners may dismiss the appeal of a case taken by them on appeal to the circuit court, notwithstanding the prosecuting attorney of the county is opposed to such dismissal.
   MARVIN, J.

This case was brought by a taxpayer, who first applied to the prosecuting attorney of the county to hare it brought, who declined to bring it.

' The relief sought is -an injunction to prevent the defendants from issuing a series of bonds for the construction of a bridge across the Muskingum river and the Ohio canal in the county of Coshocton. The result- of the trial, in the court of common' pleas was the granting of the injunction. Thereupon the defendants appealed the ease to this court by proper proceedings. The case being called for trial here, this peculiar situation presents itself. Counsel for the plaintiff were ready to proceed with the case; the prosecuting attorney of the county and other attorneys associated with him were ready to proceed with the case, and the case was fully heard in this court, but an attorney of this bar who has a right to appear as a friend of the court, if for no other purpose, brings to the attention of the court thaib on the —day of-, 1909, the board of county commissioners adopted a resolution requesting that the appeal be dismissed. -No formal motion is made by anybody in this court to dismiss the appeal. It is said in argument that there is no proper evidence before the court that the resolution spoken of was ever passed by the board of commissioners, but this is a mistake. It is true that an affidavit is filed showing the passage of the resolution, and it is further true that upon the hearing, all of the records of the board of commissioners, in reference to the construction of the bridge mentioned, were admitted in evidence, so tliat the court is not dependent upon the affidavit alone referred to, but has a record itself which shows the adoption of the resolution, and we are confronted with the question of whether, in view of this resolution, the court should dismiss the appeal.

It is conceded that if the board represented only itself, were acting for itself alone, the appeal should be dismissed, or in any event that the court would be authorized to dismiss the appeal. The circuit court of the eighth circuit on December 16, 1907, held in the case of Albert Menjou v. Local No. 106, Hotel & Restaurant Employes (not reported), that a party who had appealed might dismiss his appeal where the rights of others were not thereby prejudiced, and as has already been s.aid, no serious objection has been made against that proposition.

But, it is said, that the board of commissioners acting in a representative capacity, and only 'as trustees of the public, to permit them to dismiss this appeal, in view of the fact which is shown in the evidence of the case that ait an election at which the question of the construction of the bridge, to pay for Which the bonds were to have been issued received a majority of votes in favor of the construction of the bridge, would be violating their trust and sacrificing the rights of the public, who had voted as above indicated. If the board of commissioners are to be considered as trustees in the sense that they have no other interest in the case and no other rights in the case than a guardian would have in a suit brought on behalf of his ward or an ordinary trustee on behalf of his cestui que trust, this proposition would be sound.

Authorities cited by counsel opposing the dismissal of this appeal support the proposition. These authorities are largely found in Encyclopedia of Pleading aud Practice, p. 853. The text supported by these authorities reads:

“A trustee or nominal plaintiff can not voluntarily terminate his cause without the consent of the real party in interest; and where he dismisses without or against the consent of his cestui que trust, the case will be reinstated on motion or by mandamus.”

Among the authorities cited in support of this text is the case of Thomas v. Thomas, 13 Ky. (3 Litt.), 9, where this language is used:

“There may be eases where it might be improper to permit those in whose names a suit is prosecuted to dismiss it; as for example, where the suit' is brought for the benefit of another, and the person claiming the beneficial interest is proved t'o have the equitable right, in the exercise of its discretionary powers over litigants, permit the nominal plaintiff to defeat a recovery.”

We are of opinion that the board of county commissioners is such a party to this case as that it may do what a natural person could for himself do in the matter of dismissing an action, or dismissing an appeal.

By See. 845 Rev. Stat. (Sec. 2408 G-. G.), it is provided that:

“The board of county commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judicature, and of bringing, maintaining, and defending all suits, either in law or in equity, involving an injury to any public, state or county road, bridge oar ditch,” etc.

If the board may bring suits it must bring such suits, when in the exercise of its discretion it deems it best1 for the county that the suit should be brought, so too in the matter of the defending of any suits brought against the county, and this necessarily implies on the part of the hoard, authority to compromise and adjust claims to settle suits, and to- dismiss suitsi, when in the judgment of the board such should be pursued. Certainly their authority in this matter can not he less than the authority of the officers of a business corporation. Such officers are, in a sense, trustees for the stockholders of the corporation, hut it has never been doubted, that acting in good faith, such officers might dismiss the suits brought by them for and on behalf of their corporation, and this because the corporation can only act! through its proper officers, and in a matter of litigation the hoard of county commissioners constitutes such officers.

lu the case of State v. Moriarity, 20 Ia. 595, it is held that an appeal taken by the state may he dismissed by the stlate, as any other party may dismiss Ms appeal, unless it appear that the appellee will be prejudiced.

Here there is no complaint by the appellee tbat be will be prejudiced by tbe dismissal of tbe appeal, and we bave tbe extraordinary situation of both appellant and appellee being content tbat tbe appeal should be dismissed and tbe ease stand upon tbe judgment appealed from, and somebody else, not representing tbe public, objecting to such dismissal.

It is true tbat tbe prosecuting attorney for tbe county is made by law tbe legal advisor of tbe board of county commissioners, and it is made bis duty to prosecute and defend suits for tbe county, and certain suits may be brought by him on bis own initiative, but generally bis action, so far as prosecuting and defending suits is concerned is directed by tbe commissioners. It is certainly no part of 'bis duty to direct tbe commissioners as to tbe policy to be pursued by them in any business transaction. It is bis duty to advise them of wbat their legal rights and duties are as a board of commissioners; having done this, it is for tbe commissioners to determine tbe policy they will pursue in tbe matter of bringing or defending actions or settling actions already brought.

We reach tbe conclusion tbat nobody’s rights will be prejudiced by dismissing this appeal pursuant to the resolution of tbe commissioners requesting tbat it be dismissed, and an order will be entered accordingly.

Winch and Henry, JJ., concur.  