
    The State of Ohio v. Kelly and others.
    1. A county treasurer who receives out of the county treasury any allowance or compensation other than that specially provided hy law, is liable, under the statute, to an action upon his bond, together with his sureties, for double the amount so received.
    2. Having received such allowance while acting as treasurer, or having received it in his capacity as treasurer, he can not defend against the action, when brought, hy claiming that in so receiving he was acting merely as a private individual, and not as an official.
    3. Such action is properly brought in the name of the State of Ohio, the obligee in the treasurer's bond.
    4. Such action is not subject to the limitation of one year, as provided in section 16 of the code, but to the same limitation as that which governs official bonds.
    This is an action on a treasurer’s bond. Jeremiah M. Kelly was treasurer of Logan county, and the other defendants are his sureties. The first cause of action in the petition is as follows:
    “ The plaintiff, by Duncan Dow, prosecuting attorney in and for Logan county, Ohio, for a first cause of action against said defendant, says: 1. That on the 1st day of September, a,d. 1869, the said Jeremiah M. Kelly, Wm. Rulan, 0. Hayes, C. Folsom, Joseph Chambers, Abner Riddle, B. E. Brown, William Lawrence, Jonathan Plnm, Henry Nelly, Amos Miller, and J. N. Allen, at the county of Logan aforesaid, by their certain writing obligatory, of that date, acknowledged themselves to be held and firmly bound unto-the State of Ohio in the penal sum of two hundred thousand dollars ($200,000), and which said writing obligatory was and is subject to a condition thereunder written, and which condition is in the words and figures following, to-wit: The condition of the above obligation is such that, whereas, the said Jeremiah M. Nelly was, at the October election, a. d. 1869, duly elected to the office of county treasurer, in and for the county of Logan, and State of Ohio, for the term of two years, commencing the first Monday of September, a. d. 1869, and until his successor shall be elected and qualified: Now, if the said Jeremiah M. Nelly shall pay over all moneys according to law which shall come into his hands for state, county, township, and other purposes, and shall do and perform faithfully the duties of his said offices, as. said county treasurer, according to law, then this obligation shall be void; otherwise, the same shall be and remain in full force and virtue in law.
    2. That the said Jeremiah M. Nelly did thereupon take upon himself the duties of the said office of county treasurer of said county of Logan, and was such treasurer at the times of committing the wrongs hereinafter stated.
    3. That on the 6th day of September, a. d. 1870, said Jeremiah M. Nelly, as such treasurer, did present to the county commissioners of said county the following account for services as such county treasurer, to wit: Logan county, dr., to J. M. Nelly. For safe-keeping, disbursing, redeeming,, and canceling Logan county bonds, from September 6,. 1869, to September'5, 1870, and for redeeming and canceling coupons during same time, and for sorting and arranging the same in proper order for settlement, $359.48, being-seven-tenths of one per cent, on the net collections for 1869 on special duplicate. September 6, 1870. Signed, J. M. Nelly, treasurer. 4. That on the 8th day of September,. a. d. 1870, said Jeremiah M. Kelly, as such treasurer, as aforesaid, unlawfully received out of tire county funds in the treasury of said county, as compensation for services, as stated in his said account, the said sum of $359.48, on account of all which the plaintiff, by Duncan Dow, prosecuting attorney, says that the said Jeremiah M. Kelly, together with said other defendants, have become and now are indebted .unto the State of Ohio, for the use of said county of Logan, upon the official bond of said Jeremiah M. Kelly, a certified copy of which is hereto "attached and made a part hereof, marked Exhibit ‘A,’’ in the sum of $718.96.”
    The second cause of action is entirely similar, stating that, on September 5,1871, Kelly presented a like order for $445.23, which was paid. Judgment is asked on .the treasurer’s bond, against him and his sureties, for double the amount so received by the treasurer. A copy of the bond is attached to the petition.
    A demurrer is filed as follows : “ The defendants severally demur to the first cause of action set out in the petition, because the court has no jurisdiction of the subject of the action, and the plaintiff has no legal capacity to sue, and there is a defect of parties plaintiff and a misjoinder of parties defendants, and the facts stated do not constitute a cause of action; and the defendants severally demur to the second cause of action, for all and each of the reasons aforesaid.”
    This demurrer was sustained by the court of common pleas, and judgment rendered for defendants, which ruling was affirmed by the district court, and petition in error filed in the supreme court.
    
      W. H. West, for the state:
    The liability charged in this case is expressly declared by statute (S. & S. 918, 919), which provides : “ That any county treasurer who shall receive out of any funds in the treasury of the county any other or further allowance or compensation, either as fees, clerk hire, or otherwise, than is specially provided by law, shall be liable in an am tion upon his bond for the use of said county in double-the amount so received by said treasurer.”
    Every liability of a treasurer upon his official bond, is a liability against his sureties jointly with him. They are liable for every breach of his bond which renders him liable thereon.
    If, therefore, the retaining or receiving the money alleged to have been retained or received' by the treasurer, was contrary to or forbidden by this statute, it was an act of official unfaithfulness for which the -sureties of the treasurer are liable with him on his bond,
    - The petition alleges that the treasurer did receive out of the treasury as compensation an allowance for certain services which is not specially provided for by law. He must have received it either as fees, or clerk hire, or otherwise, for these words cover every possible case, or else he ■did not receive it as treasurer at all.
    Did he receive it as treasurer, or in some other capacity?
    The petition distinctly alleges, in the fourth paragraph, that he received it as treasurer; that the defendant presented his account, and rendered it as treasurer. This is of itself conclusive on demurrer. A copjy of his account is also annexed, showing that the money was received by •him as treasurer for services in that capacity rendered.
    What were the services for which he was compensated ? They were clearly official. The account — a copjy of which is given — distinctly states that it was, in part at least, for redeeming and canceling county bonds and coupons.
    He could only redeem and cancel county bonds and coupons lawfully by paying but the public funds in his possession as treasurer.
    He either paid out these funds lawfully, or he did it unlawfully. He could only pay them out lawfully if authorized by law. If he was so authorized by law, it was an official disbursement of the public funds which he was recpuired to make, and for which he received compensation under the general fee-bill. Hence this extra compensation was for an official service, for which he had already been paid, and which it was his duty to perform without any extra compensation. Therefore, his receiving it was an act of official unfaithfulness.
    The statute of limitations is objected against the first cause of action, on the ground that the demand is in the nature of a penalty. When the statute creates a penalty, and gives an action for it, it is limited to one year. But when a statute, instead of giving a direct action, declares a liability upon an official bond, as for official delinquency, it •obviously intends that the liability shall be subject to the ■same laws and limitations, which govern other liabilities on •official bonds. It certainly can not intend that there shall be different liabilities subject to different limitations upon the same official obligations. Ten years limitation of actions on official bonds means any and all actions, not some.
    
      J. B. McLaughlin, Duncan Dow, and J. Duncan McLaughlin, filed a brief also for the state.
    Wm. Lawrence & Joseph H. Lawrence, for defendants in error:
    The statute under which this action is brought is penal, ítnd is to be strictly construed.' It can not be extended to any case unless clearly within its very words. Bond v. Sweanigan, 1 Ohio, 403; Hall v. State, 20 Ohio, 7; 1 Ohio St. 31; Conkling v. Barker, 12 Ohio St. 424; Langdon v. Summers, 12 Ohio St. 80; Edmiston v. Edmiston, 1 Ohio, 251.
    The petition in the court below does not sue Kelly as at ■common law for any liability. It does make the que'stion whether he and his sureties are liable on his official bond ■for the penalty fixed by statute. S. & S. 919, § (4) 11.
    The action can not be maintained unless the record shows:
    1. That Kelly has done something which clearly brings hiim within the statute.
    2. Nor unless the statutory remedy has been strictly pur■sued.
    
      I. Kelly has not incurred the penalty, because he has not violated this statute.
    The whole statute must be read together to ascertain its meaning.
    Now, reading sections 1, 2, and 3 of this statute together - — construing all strictly — they mean only that any county treasurer who shall:
    (1) “ Receive ” any unauthorized allowance, -
    (2) “ On settlement with the county auditor,”
    (3) “ As his fees for the collection, safe-keeping, and disbursement of moneys arising from the assessment of-taxes,”
    (4) “ On the grand duplicate,” shall be liable for the penalty provided by the statute.
    These four things are necessary to fix a liability to the penalty.
    The court has no power to say the liability has accrued, unless the extra fees are received as above, “ on settlement.” The penalty does not attach unlejs the three remaining -facts exist, that Kelly did :
    1. “ Receive ” illegal allowances,
    • 2. “As fees for the collection, etc., of money arising from taxes,”
    ■ 3. “ On the grand duplicate.”
    This statute does not affix a penalty against a treasurer who receives unauthorized pay for unofficial duties.
    If the treasurer acts as clerk in aiding the county auditor, it is not an official duty. This is in fact what he did-Now the record does not accuse him of receiving unauthorized fees or allowances for either the “ collection,” “ safe keeping,” or “ disbursement of money :”
    Nor of “ moneys arising from taxes.”
    And still more, not of “ taxes on the grand duplicate.” Turnpike taxes are not put on the “ grand duplicate.” Act March 31, 1868, § 6, 65 Ohio L. 41. S. & S. 674.
    The only complaint is that Kelly “ received compensation for safe keeping, disbursing, redeeming, and canceling Logan county (turnpike) bonds.”
    H. The compensation paid Kelly was not to him astreastirer, nor for any official act. The statute of April 13,. 1865, only applies to illegal charges for official acts as to* taxes on the grand duplicate.
    The keeping of county turnpike bonds was not an official act, and no averment, and no admission, can make it so. The question is not what the service was called, but what was it in fact and legal effect.
    III. The “ turnpike statutes ” authorize the county commissioners to make this allowance. Statute of March 29, 1867 (S. & S. § 8, 672); 64 Ohio L. 80.
    IV. This action can not be sustained because an action under the statute, for a penalty, lies on proper facts against the treasurer alone — not against his sureties.
    1. It is not a breach of any words in the treasurer’s official bond to take illegal fees.
    2. The statute makes the treasurer alone — not his sureties — liable to the penalty by suit on bond. S. & S. 919,. §2.
    3. By all the authorities the sureties have a right to-stand on the strict letter of the bond. State v. Medary, 17 Ohio, 554; State v. Cutting, 2 Ohio St. 272; Raymond v. Whitney, 5 Ohio St. 210; Hall v. Williamson, 9 Ohio St. 17 ; State v. Covey, 16 Ohio St. 17.
    It has been urged that it was the treasurer’s official duty to pay the turnpike bonds and coupons. But this is not so. He is only bound to pay “ any order drawn on him as treasurer by the auditor of his county.” Act March 12, 1831, 29 Ohio L. 291; 2 S. & C. Stat. 1585, § 6. The turnpike bonds and coupons are not orders. The payment of coupons was not the services for which Kelly received compensation.
    V. If any action could be maintained against Kelly, it must be in the name of the county commissioners.
    This is sufficiently shown by Civil Code § 27; Statute of March 30, 1868, 65 Ohio L. 35; S. & S. 89. Shanklin v. Comm’rs of Madison Co., 21 Ohio St. 89; State for use, etc. v. Piatt, 15 Ohio, 75, 23; Comm’rs v. Mighels, 7 Ohio St. 
      114; Grimwood v. Comm’rs, 23 Ohio St. 600; Carder v. Comm’rs, 16 Ohio St. 369.
    The money paid Kelley was under a contract with the county commissioners. They were authorized by the “ turnpike law ” (Statute March 29, 1867, 64 Ohio L. 80; S. & S. 672, § 6; Statute April 30, 1869, 66 Ohio L. 62, § 7), to make contracts, and, therefore, the suit must be in their name. The funds paid were turnpike funds. The state has no interest whatever in the money or the contract, or. the result of the suit. No statute authorizes the state to •sue. Supervisors of Galway v. Stevenson, 4 Hill, 136; Overseers of Pittsford, v. Overseers Platsburg, 18 Johns. 407, 418; Todd v. McCail, Overseers Bridsal, 1 Cowen, 260; Fourth School Dsstrict v. Wood, 13 Mass. 197; Trusler v. May, 8 Wend. 516 and notes.
    
      John A. Price, also for defendant in error, filed a brief making the same points as his associate counsel.
   Wright, J.

It will be seen that the petition alleges that Kelly, county treasurer, received out of the county treasury, for services as county treasurer, $804.71 for safe keeping, disbursing, redeeming, and canceling Logan county bonds, for redeeming and canceling coupons, and for sorting and arranging the same.

The action is brought under the act of April 13,1865 (S. & S. 919, § 2 (4), which provides “ that any county auditor or county commissioner who shall make, order, or pay, or any treasurer who shall receive out of any funds in the treasury of their county any other or further allowance ■or compensation to any such county treasurer, either as fees or for clerk hire, or otherwise, than is specially provided by law, shall be liable in an action on his bond, to be brought by the prosecuting attorney of such county, for the use of such county, in double the amount so paid or ordered to be paid by said auditor or commissioner, or received by said treasurer.”

In support of the demurrer, it is claimed that when Kelly received this money, he was not acting as treasurer; that his bond only covers delinquencies in official acts; and as this was not official, there has been no breach of the bond..

Counsel claim that this statute is penal, and must be strictly construed, which may be admitted. It is also said that the whole statute must be read together, in order to> ascertain its meaning, which is also true. So reading the statute, counsel seem to claim that county treasurers can be guilty of official delinquency only in something connected with the “ grand duplicate.” "We fail to discover the force of this argument, and it seems to us that it overlooks an important word in the law. It was already provided, in the preceding section, what fees the county treasurer should have, which should be a certain percentage upon the taxes-on the grand duplicate. Then the section we are considering says if he receives any further money out of the treasury for fees, clerk hire, or otherwise, then the action shall lie. We conceive that these words “ or otherwise ” mean something. They comprehend every case of getting money out of the treasury other than that which the preceding section had provided should be the legitimate one.

And we are not impressed with the proposition that a-man who has been elected county treasurer, who has given bond as county treasurer, and. has acted as county treasurer,, when he takes money from the county treasury for a purpose not authorized, can successfully defend by saying that he did so, not as a public officer, but as a private citizen,, and therefore his sureties are not liable. All money he receives from the treasury he receives as treasurer; otherwise-he could not get it at all. If, when so received, he applies it-to a lawful purpose, this is all legal and an act of the treasurer. If he applies it to an unlawful purpose, or keeps it himself, without right, it does not make the act by which he received it from the treasury in the first place any-the less an official one. The statute says: “Any treasurer who-shall receive out of any funds in the treasury,” etc. It would be opening too wide a door to indiscretion to hold that the-taking of public funds without authority of law could not-be reached, because the moment the unlawful acts began, that moment the officer lost all official character, and with it all capacity to make himself or his sureties responsible.

"We do not find that these payments were authorized by any law, as it is claimed they were; but, on the contrary, that they were expressly prohibited by the section quoted.

It is further claimed that this action should have been in the name of the county commissioners.

The bond, it will be seen, was taken to the State of Ohio. It is provided by section 25 of the code “ that every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 27.” And it is provided by section 27 that “ an executor or administrator, guardian, trustee of an express trust, a person with whom •or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue in such name as is authorized by law, and official bonds may be sued upon in the same way.”

The law always was, as we understand it; that suit might be brought in the name of the obligee of the bond, for the use or benefit of him whom the bond was to protect, and who had a claim under it. Here the suit is brought in the name of the state, and the statute authorizing the action provides that it shall be for the use of the county; it has •therefore been properly brought, and could not have been In the name of the commissioners, as is directly decided in Hunter v. Commissioners of Mercer County, 10 Ohio St. 515.

It is said that the first cause of action is barred by the .statute of limitations.

The money in the first order was obtained by the treasurer,-Kelly, on September 8, 1870, and the action brought May 31, 1872. It is said to be an action upon a statute for a penalty or forfeiture, which must be brought in one year. Code, § 16.

The cases cited by counsel for defendant in error are cases •where there was an action for a' penalty, given against the individual officer,'which, was barred in a certain time, and it was held, if such action could not be maintained against the officer, who was principal in the bond, of course it could not be maintained against his sureties. For instance, an action against an auditor for misfeasance in office was barred in a year, and consequently an action on his bond could not be maintained after the expiration of the year for that same misfeasance. State v. Commissioners of Knox County, 2 Ohio St. 147.

But it will be observed that the statute which gives this action does not give a penalty or forfeiture against the treasurer. If it did, if it said that he should be compelled to pay double, provided the action were brought in one year, it might be that the same limitation would apply to the bond, and no suit could be brought upon it after the year had expired. But this is the statute: Any treasurer doing the prohibited thing “ shall be liable in an action upon his bond.” An action, therefore, could not be upheld against him individually for double the amount, otherwise than through his bond. If it could not be so upheld, of course the one year limitation does not apply.

It being therefore an action upon the bond, strictly speaking, the limitation of ten years, applicable to bonds, is the proper one.

For these reasons the demurrer was not well taken, and the judgment should he reversed.  