
    The State of Ohio ex rel. Edward T. DeLany v. The Commissioners of Franklin county.
    A board of county commissioners lias no power, under the constitution and laws of Ohio, to employ an attorney to prosecute criminal complaints before the examining magistrates of the county, except in cases in which the county, in its guasi corporate capacity, has a direct interest. Nor can the board of commissioners be compelled, by mandamus, to pay for such services out of the county treasury'.
    Motion for writ of Mandamus.
    This is a motion for a writ of mandamus to compel the defendents to allow the payment, out of the county treasury, of the relator’s bill for legal services amounting to the sum ■of $1,149, rendered under the following circumstances : Ou the 5th of January, 1869, the board of commissioners of Franklin county, (then composed of other than the present members), entered upon the journal of the board the following order, viz. “ Ordered, that E. T. DeLany, Esq., prosecuting attorney, be and he is hereby employed to prosecute all criminal cases before the several mayors and justices of the peace in Franklin county, Ohio, upon his being notified thereof by the proper officers or prosecuting witnesses, as long as the board of commissioners may deem it an advantage to the county to do so, upon the following terms, viz : For each case five dollars, and an allowance for buggy hire not to exceed an amount which he has paid for the same.”
    The purpose sought to be accomplished by this order was to relieve the county from expenses incurred hefore the grand jury in the examination of frivolous cases sent up on preliminary examinations by the magistrates of the county.
    On the 22d day of October, 1870, the above order was rescinded by the commissioners.
    On the 12th day of March, 1872, the relator having presented his bill to the commissioners, they caused the following entry to be made upon then- journal: “In the matter of the claim of E. T. DeLany against the county of Franklin, which was referred for legal opinion to Geo. K. Nash, prosecuting attorney, said George K. Nash came before, the board to day and reported against the authority of the commissioners to pay said claim. At the same time the matter was argued by him and Joseph Geiger, attorney for said DeLany. The commissioners upon a full hearing do make the record that the account of E. T. DeLany for $1,149, is according to a contract between him and a former board of commissioners. That the account itself has been fairly proved, but we decline paying the same because we are of opinion we have no legal right or authority to do so.”
    
      Jos. JET. Geiger for the relator :
    
      Smith v. Com'rs of Portage county, 9 Ohio, 25 ; The State for use, etc. v. Piatt, 2 Western Law Journal, 216 ; Swan’s Stat. 205; The State v. 
      Piatt, 15 Ohio, 22; Sayler’s Stat. 89, 90, 92 ; Hornblower v. Duden, 35 Cal. 664, 671; Smith v. Mayor, etc. 13 Cal. 531, 533; Butler v. City of Charleston, 7 Gray, 12; 6 Cal. 254; Com. ex rel. Schwamble v. The Sheriff, 1 Grant’s eases (Pa.) 188 ; County of Lancaster v. Brinthall, 29 Penn. St. 38 ; McClamont v. County of Allegheny, 29 Penn. St. 417; San Francisco Glass Co. v. City of San Francisco, 16 Cal. 256 ; Snelson v. The State, &c. 16 Inch 29; Com’rs of Trumbull county v. Hutchins, 11 Ohio, 371 ; Com’rs of Lucas county v. Hunt et al, 5 Ohio St. 496.
    
      Geo. K. Hash for defendants:
    
      Smith v. Com'rs of Hamilton county, 9 Ohio, 25 ; Com’rs of Hamilton county v. Migbels, 7 Ohio St. 109, 115 ; Crim. code, secs. 37, 38.
   By the Court.

The board of county commissioners has no power, under the constitution and laws of Ohio, to employ an attorney to prosecute criminal complaints before the examining magistrates of the county, except in cases in which the comity, in its quasi corporate capacity, has a direct interest. Nor can the board of commissioners he compelled, by mandamus, to pay for such services -out of the treasury of the county.

Motion overruled.  