
    The State v. Staley.
    1. Proceedings hy mandamus, on the relation of the treasurer of state, will lie to compel the treasurer of a county to transfer to the state treasury the state’s proportion of taxes collected by such county treasurer.
    2. A petition for a writ of mandamus in such case, which shows the collection of such taxes by the county treasurer, is not defective for want of an averment that the taxes so collected remain in the county treasury subject to the command of the writ.
    3. Under section 1043 of Revised Statutes, as amended April 19, 1881 (78 Ohio L. 226), the amount of taxes for which the treasurer stands charged, is the whole amount of taxes levied on the duplicate, less the amount returned delinquent and the collection fees allowed the treasurer.
    4 The amount of money in the treasury, for which the treasurer stands charged, cannot be increased or diminished by the exercise of the authority conferred on the auditor by said section to correct “ any error which may have occurred in the apportionment of taxes at any previous settlement.”
    5. In obedience to a writ commanding a county treasurer to pay into the state treasury a balance due the state on its portion of taxes collected by the county treasurer, and for which no provision has been made by the county auditor in his apportionment of taxes, any excess of money in the treasury over the sruns apportioned to other funds for which taxes were levied, may be used by the treasurer in making such payment.
    Mandamus.
    The relator, Joseph Turney, state treasurer, in his petition, represents that on October 25, 1881, the auditor of state examined the certificate and abstract of the semi-annual settlement between the auditor and Luke A. Staley, treasurer of Hamilton county, made on September 23, 1881, which certificate and abstract were returned by said auditor of Hamilton county to said state auditor on October 3, 1881, as required by law.
    That upon such examination, the auditor of state ascertained the exact sum of money payable by the treasurer of Hamilton county to the state treasurer to be $291,698.19, and also ascertained that the amount of Hamilton county’s proportion of the state common school fund was $73,183.60; whereupon the auditor of state certified his findings to the treasurer of -state as required by law, and issued his draft upon the treasurer of Hamilton county in favor of the relator for $218,511.59, the same being the difference between the amount so found due to the state treasury from the treasurer of Hamilton county and the amount of school funds due to said Hamilton county from the state treasury. That prior to said October 28, 1881, the treasurer of Hamilton county had paid into the state treasury on account of the amount so found due from the treasurer of Hamilton county to said state treasury, the sum of $206,979.99, at the last semi-annual settlement in the year 1881, leaving a balance due of $11,531.60. That said draft had been duly presented for payment by the relator to the defendant, the treasurer of Hamilton county, and payment of said balance of $11,531,60 demanded, which was, and ever since has been refused.
    Wherefore said relator prays for a writ of mandamus to compel the defendant, the treasurer of Hamilton county, to pay and deliver to the state treasury the said sum of $1-1,531.60, and other relief.
    Upon this petition an alternative writ of mandamus was issued as prayed for, and thereupon the defendant filed an answer containing several alleged defenses, to the first and fourth of which the relator demurs,
    The first defense is as follows: “ That the plaintiff ought not to have its writ of mandamus herein for the reason that plaintiff has a plain, adequate and specific remedy at law for the grievance of which he complains.”
    The fourth defense is as follows : “ This defendant, in further answer to said petition and writ issued herein says, that the auditor of Hamilton county, Ohio, on September 23,1881, at his office, made settlement with defendant and ascertained the amount of taxes with which he, as treasurer, was to be charged, and, after making the deductions to which he was entitled, distributed in just and ratable proportion upon the several taxes charged on the duplicate, ascertained the balance for which said treasurer was to be held liable, aud to whom, in their several amounts, he was liable for such balance, and also ascertained the amount remaining in the treasurer’s hands belonging to each fund; and. thereupon the said auditor on said day did issue to the treasurer, this defendant, a certificate and abstract of such settlement, and of the balance of the amount of taxes received and charged to him as due to the state, the balance thereof due to the county, the balance due for road purposes, and the balance due to the townships and the other bodies and purposes to which said aggregate in his hands was found to belong, a copy of which certificate and abstract of settlement, and account with the state, is hereto attached, and made a part of this answer.
    
      “ In pursuance of this settlement, and of the provisions of law in that. behalf, the said treasurer forthwith proceeded to transfer, and did transfer and enter into their several accounts, the sums with which he was charged in said settlement, in favor of the state, the county, the townships, corporations, and the said several funds as shown in said certificate of settlement ; and said several amounts became theréafter subject to draft upon said treasurer in favor of the several persons or corporations authorized to receive the same. And the said treasurer further says that he fortliwitji upon said transfers of said several sums to their respective funds, proceeded to pay them out upon the proper drafts or warrants of the county auditor to the corporations or uses to which they became payable upon said settlement, and thereafter continued to pay them, up to the service of the writ herein, and has ever since continued to pay them as by law and his obligation he is bound to do.
    
      “ This defendant further says, that by said settlement he became charged in favor of the state of Ohio with the sum of $280,163.59, ascertained and certified by said auditor as aforesaid to be the amount and balance of taxes due the state of the moneys collected by said treasurer, which said balance so certified to be due the state he caused to be remitted to the treasurer of state as alleged in petition of plaintiff. All the balance .of moneys in his hands as treasurer of said county he held — and in part holds, on accounts and subject to the claims of others than the state of Ohio, ascertained and determined by the said county auditor in the settlement and certificate aforesaid, and credited and transferred to them, and he is not authorized or permitted to apply said funds to other uses, and is liable to the corporations and uses to which such funds have been transferred for the amount thereof remaining in his hands. Defendant holds no funds in his possession for the use of the state of Ohio or to its credit.”
    The contents of the certificate and abstract of settlement referred to and made part of the answer, are sufficiently stated in the opinion. The grounds of demurer to these defenses are that the facts stated are not sufficient to constitute a defense to the action.
    
      George K. Nash, Attorney-General, for plaintiff:
    I. The state is not bound by the provisions of section 6744. The rule, that “the state is not bound by the general provisions of a statute, unless it be so expressly enacted,” has been frequently approved by this court. Ohio ex rel. v. Board of Public Works, 36 Ohio St. 409; Ohio ex rel. v. Cincinnati Central Railway Co., 37 Ohio St. 176. This rule of construction is applicable to section 6744.
    II. The fourth defense is not good because it' is the defendant’s duty to meet the demand which the state auditor, makes upon him through the state treasurer, and it is his duty to keep money enough to do so. See sections 1115, 1043 as amended, 78 Ohio Laws 226, 1044, 1045, 181, 1120, 1125 of Revised Statutes. The treasurer, in his answer, says that he has credited each fund, state, county and local, with the amounts due it, as shown by the settlement sheet, and has paid out the funds in that manner. If the settlement sheet be true, the treasurer still has the $73,413.09, deducted for errors, in his possession, for upon the settlement sheet it has not been given or apportioned to any other fund. The defendant claims that the state auditor cannot review the settlement between the county auditor and treasurer. The condition of this settlement sheet shows that it needs reviewing by some one, and that the rule the defendant seeks to establish is a bad one.
    
      Bateman & Harper and Charles Evans, for defendant:
    I. Mandamus is not the proper remedy. The plaintiff has ample and specific remedy at law. State v. Nuily, 22 Ohio St. 534; Shelley v. Hoffman, 7 Ohio St. 455; High on Ex. L. Rem. § 15. It does not appear from the petition that there is money in the treasury of Hamilton county, under the control of the treasurer, out of which he could lawfully pay this money. It does not appear, in fact, that there is a dollar of money in the treasury for any purpose. This court certainly will not issue a mandamus against the treasurer of Hamilton county, unless it appears that he will be able lawfully, or at least, in fact, to comply with the command of the court.
    II. The semi-annual settlements of the county auditor with the county treasurer are conclusive and imperative upon the latter as to the distribution, transfer and disposition of the tax collections with which he is chargeable. Sections 1043, 1044, 1047, 1122, 1129, 1084, 10S5, 1022, 1024, 1105, 1023, Revised Statutes; Freeman on Judg’ts, § 531; Brown v. Otoe Co., 6 Neb. 111; State v. Buffalo Co., Id. 454. The state auditor has no authority to revise or review the settlement of the county auditor. Section 181, Rev. Stat. It is apparent that with the disposition of the fund made by the county treasurer, in pursuance of the settlement, he only held in the treasury for the use of the state $206,979.99, and that in fact he holds no fund as county treasurer out of which he can pay the amount claimed to the state. He holds probably in the treasury a sufficient fund to pay it; but if he does, it is held by him for the use of other bodies, and it is charged against him on their account. He will be compelled to pay it to them upon warrants drawn in their favor by the county auditor. Mark v. Trustees, etc., 56 Ind. 288. He therefore cannot comply with the command of the court if issued to him. 6 Ohio, 445; 2 Ohio, 109.
   McIlvaine, J.

The demurrer to the answer brings under review the sufficiency of the petition, and the defendant claims that the facts stated in the petition do not entitle the plaintiff to the writ of mandamus, for the feason, that there is a plain and adequate remedy for the grievance complained of in the ordinary course of the law.

Section 6744 of the Revised Statutes provides that: The writ must not be issued in a case where there is a plain and adequate remedy in the' ordinary course of the law,” and, it is claimed, that such a remedy is furnished by an action on the treasurer’s bond.

It would seem that an action on the bond might be maintained under authority of section 168 of Revised Statutes, which provides: “ If any county treasurer or other officer concerned in the collection of the public revenues, or authorized to collect and pay into the state treasury money due or accruing to the state, fails to pay over all moneys by him received and belonging to the state, at the time and in the manner required by law, the auditor of state shall immediately inform the attorney-general thereof, who shall forthwith institute and prosecute the proper suit against such officer and his sureties.” The question therefore arises, would such suit afford “a plain and adequate remedy” within the meaning of section 6744? The object of the present action is to compel the transfer of certain funds belonging to the public revenues of the state, from the treasury of Hamilton county to the state treasury. A suit on the treasurer’s bond would not accomplish that object. Although the state in an action on the bond might recover the full amount of damages sustained, it would leave in the county •treasury the fund to which it is entitled, and to which the county treasury is not entitled.

In deciding the question now before us, it is worthy of remark, that section 6744 above referred to, is merely declaratory of the rule of the common law, which refused relief by ■the extraordinary writ of mandamus in cases where an adequate remedy was afforded by the usual and accustomed modes of procedure at law, and also, that section 168 does not declare a breach of an official bond that would not have existed without the section, and for which an action on the bond is the exclusive remedy. Hence no new rule has been established by this legislation, and it cannot be doubted that the jurisdiction by mandamus to compel payment from the public treasury, when such payment is a mere ministerial act, is a common and acknowledged right. See High on Ex. Legal Bern. § 112, and cases cited;

The defendant relies on the case of The State v. Meily, 22 Ohio St. 534, in which it was held that when money is wrongfully retained by a probate judge from the party entitled thereto, such party has a plain and adequate remedy by action on the official bond of the judge, or by an ordinary action against him for the money, and therefore mandamus will not be allowed to compel payment, until such ordinary remedy has been resorted to and proved ineffectual. In that case it was said that the retention of the money by the probate judge was his individual act — a conversion of it to his own use, and, no doubt, the identical money might be applied to the payment of a judgment recovered against him ; but on the facts before us, the money in the county treasury could not be withdrawn for the payment of a judgment on the treasurer’s bond at the option- of the treasurer. Such judgment and its payment would not transfer public funds from the county to the state treasury, and any remedy, which will not accomplish such transfer, is not adequate within the.meaning of this rule. There is no suspicion that the defendant is a defaulter or that he has embezzled public funds. To which treasury does this money belong is the only question in the ease, a mere question of law. If to the state treasury, it should be transferred, and mandamus is the only specific and appropriate remedy under the particular circumstances of the case.

It is also contended that the petition and writ are defective in not alleging that the money claimed is, in fact, in the .county treasury.

No doubt, a writ of mandamus should not be issued unless it appears that the thing commanded to be done is capable of being performed. The question, therefore, whether the funds sought to be transferred from the county treasury to the state-treasury, are,’ in fact, in the county treasury, is material. It appears plainly enough that these funds, before the semi-annual settlement in September, 1881, had been received intp the county treasury, and we think it must be presumed that they remain there until the contrary is shown. In view of this presumption, the petition in this respect is not defective. If the issuance of the writ be resisted on the ground that the funds claimed are not in the treasury of the county, and under the control of the defendant, such state of facts must be shown by the defendant in his answer.

Are the facts stated in the fourth defense sufficient? The object of the pleader was to show that the defendant as treasurer of Hamilton county had no funds in his possession or under his control that were legally subject to the payment of relator’s claim. The answer contains such specific averment; but we understand this averment to be a mere conclusion based on facts set forth in the answer, and especially in the certificate and abstract made by the county auditor upon the last semi-annual statement on account of the taxes of 1880, which are fully set.forth and made a part of the answer. This certificate and abstract, which nre required and controlled by sections 1043, as amended April 19, 1881 (78 Ohio L. 226), and 1044 of the Revised Statutes, contain the controlling facts of the case in so far as they are made in conformity to law. Section 1043 provides that “the auditor shall attend at his office, on or before the 15th day of February, and also on or before the 10th day of August annually, to make settlement, with the treasurer of his county, and ascertain the amount of taxes with which such treasurer is to stand charged; and the auditor shall, at the August settlement, take from the duplicate, previously put into the hands of the treasurer for collection, a list of all such taxes as such treasurer has been unable to collect . . . . ; and after deducting the amount of taxes as returned delinquent, and the collection fees allowed the treasurer, from the several taxes charged on the duplicate, in a just and ratable proportion, the treasurer shall be held liable for the balance of such taxes; and the auditor after first correcting any error which may have occurred in the apportionment of taxes at any previous settlement, shall certify the balance due to the state, the balance due to the county, the balance due for road purposes, and the balance due to the townships,” &c. And section 1044, after giving more specific directions as to the manner of making the settlement, requires that “ the auditor shall also make out and deliver to the treasurer a certificate specifying the amount charged on the tax duplicate of the county for each of the several purposes for which taxes have been levied; and also a certificate or an abstract of the taxes which have become due and payable and which remain unpaid,” &c.

Now it appears from the certificate and abstract of this settlement, as made by the auditor of the county, that after all proper deductions, to wit: the amount of delinquent taxes and the collection fees allowed the treasurer, had been made from the amount of the duplicate, the auditor found the balance, for which the treasurer should be held liable, to be $2,811,649.74, and that the proportion thereof due to the state for the sinking fund, general revenue and common school fund, was $291,658.63. But the certificate also shows that from this aggregate of the treasurer’s liability, the auditor further deducted the sum of $73,413.09 (thus reducing the liability of the treasurer to the sum of $2,738,236.65), on account of “net balance of errors corrected,” and thus reducing the amount due the state by the sum of $11,534.60, being its proportion of said deduction of $73,413.09, leaving a balance due the state of $280,124.03, from which balance, the sum $73,183.60, being the proportion of the common school fund to which Hamilton county was entitled, was retained by the treasurer, and deducted from $280,124.03, so found due to the state, and the remainder, plus $39.56 for special licenses, to wit: $206,979.99, was duly paid into the state treasury by the defendant in full, as is claimed, of the state’s proportion of the amount for which the treasurer of Hamilton county is held liable on account of the duplicate for the year 1880.

The auditor of Hamilton county having transmitted to the auditor of state a duplicate of said certificate and abstract as required by section 1045 of Revised Statutes, the auditor of state proceeded to examine the same as required by section 181 of Revised Statutes, which provides, “ the auditor of state, immediately on the receipt of the certificates and abstracts of each semi-annual'settlement between the auditor and treasurer of each county, forwarded to him by the county auditor, shall proceed to examine the same, and ascertain the exact sum or sums payable by each county treasurer into the state treasury, and shall certify the same to the state treasurer, specifying in the certificate or certificates the amount belonging to each fund and the total amount to be paid into the state treasury; he shall also ascertain and certify to the state treasurer the amount of such county’s proportion of the state common school fund, and of school, ministerial and other trust funds, if any, due and payable to such county; and at the same time he shall issue his draft or drafts upon the county treasurer in favor of the state treasurer, for the sum or sums so found due and payable, after deducting the amount of the several sums found due to the county on account of school, trust, or other funds.”

On such examination the auditor of state ascertained the exact sum” due to the state to be $291,658.63, and after deducting therefrom the sum of $73,183.60, the county’s proportion of the state common school fund, drew his draft on the county treasurer in favor of the state treasurer for the remainder, plus the sum of $39.56 for special licenses, to wit: for the sum of $218,514.59. The treasurer of state, having given a credit, on his draft, of the money theretofore paid into the state treasury by the defendant, prosecutes this suit for the balance, to wit: $11,534.60, the same being the exact amount deducted from the state’s proportion of taxes on account of net balance of errors corrected ” as above stated.

1 The right of the state to this balance is not now submitted for our decision, but, we are clear, that if this right is.hereafter determined to be in the state, there are funds in the county treasury and under the control of the defendant, that should be subjected to its payment. The county auditor had no warrant or authority of law for deducting, from the amount for which the treasurer should be held liable, any sum whatever on account of “ errors corrected.” The only sums authorized to be deducted from the. full amount of the duplicate are two: 1st. The amount of delinquent taxes. 2d. The amount of the treasurer’s fees. The remainder is the amount for which the treasurer is' held liable, and the whole amount of this liability-should have been apportioned among the different funds for which the taxes were levied. This amount is $2,811,649.74. The amount actually apportioned by the auditor to the several funds was only $2,738,236.65, leaving a balance in the treasury of $73,413.09, no part of which has been apportioned to any fund. True, in making the apportionment the auditor is authorized to correct any error which may have occurred in the apportionment of taxes at any previous settlement.” But, by correcting such errors, the amount to be apportioned is neither increased nor diminished. Whatever sum may thus be taken from one fund must be added to another. This has not been done in this case. The $73,413.09 of “ net balance of errors corrected” were ratably deducted from the several funds for which taxes were levied. Hence, the whole of this sum remains in the treasury of the county unappropriated, and may be made subject to any judgment which may be rendered in this cause.

Demurrers to first md fourth defenses sustained.

Johnson, J., dissented.  