
    The State of Ohio, for the use of the Commissioners of Hamilton Co., vs. Jacob W. Piatt and others.
    The Commissioners of a county may sue for, and recover, money due to the county.
    In an action on the bond of a Clerk of the Court of Common Pleas, by the County Commissioners, to recover fines, fees and costs, received by him in his official capacity, it is not necessary the declaration should contain an averment that the indictments, wherein they arose, were determined in favor of the State.
    It is not necessary in such action, that the declaration should show for what grade of offences such fines, &c., were assessed, nor that the declaration should contain an allegation that the Clerk has been qualified as such.
    This is an action of Debt, and comes before the Court, by appeal, from the Court of Common Pleas of Hamilton County, and reserved for decision here. . .
    The action is brought upon a bond executed by the defendant, Piatt, as principal, and the other defendants as sureties, conditioned, according to the statute, for the faithful performance, by Piatt, of his duties, as Clerk of the Court of Common Pleas of Hamilton county.
    The declaration contains three counjts. The first sets forth the bond and condition, “ that if the said Piatt should truly and ‘ faithfully pay over all money that might be by him received in s his official capacity,” &c., said bond to be void, &c.; avers the appointment of Piatt, delivery of bond, and deposit with county treasurer; that he entered upon his duties as clerk, and so continued in office, as clerk, until February, 1844. That sum $^66 26 was received by Piatt in his official capaas clerk, the same being fines, fees and easts, in suits heard and determined in the Court of Common Pleas of Hamilton county; specifying each case by its name or title, and enumerating the amount received in each; averring that all such fines, &c., were collected and received by said Piatt, as aforesaid, upon certain indictments pending in said Court against such defendants, and that the same were payable, and ought to have been paid, into the county treasury of Hamilton county. The breach assigned, is neglect and refusal of Piatt to pay such moneys into the county treasury.
    In Bank.
    Dec. Term, 1846.
    The second count is similar to the first, except that the sum received by Piatt is stated in gross, without specifying the individual cases in which the fines, fees and costs accrued.
    The third count alledges an accounting, by Piatt, in a certain suit or complaint of the State of Ohio against him, of moneys received by him, in his officiál capacity as clerk, in which suit or complaint he stated the amount, so received for fines, fees and costs, to be $966 26 ; with an averment that such sum is composed of fines, &c., received by said Piatt, as clerk, in various criminal prosecutions, before' that time prosecuted in said Court, and that they should have been paid into the county treasury. Breach, non-payment, as in first count.
    To this declaration the defendants demur specially, and for causes of demurrer, assign —
    First: That the declaration does not show that the County Commissioners have been so injured, as to invest,them with the right to sue for and demand the sum of money claimed therein.
    Second: It is not averred in the declaration that the indictments, wherein those fines, fees and costs arose, were determined in favor of the State of Ohio, and were of right thereafter the property of the county of Hamilton, and that the said commissioners had a right to sue therefor.
    Third: It is no where averred in the declaration, for what grade of offences those fines were assessed and collected.
    
      Fourth: It is not averred that said defendant, Piatt, was a qualified officer, under the constitution and the law, and that the supposed sum of money, claimed by the plaintiffs, after such qualification, and came into his hands, as the Clerk of said Court, de jure.
    Fifth: It cannot be gathered from said declaration that the “certain indictments,” therein spoken of, ever matured into judgments, or assumed any other judicial form, by which said fines, &c., could have been collected by an officer, in his capacity as such.
    
      Spencer &f Convine, for Defendants.
    First: The first point we shall examine, is, as to the power of the County Commissioners to prosecute this suit. The suit, though brought in the name of the State, is for the use of the County Commissioners. They, then, must have an absolute right at law to call the principal to account, for a breach of some one or more of the conditions of the bond. And this right must appear affirmatively upon the face of the déclaration. The declaration in this case shows no such right; nor do the various statutes, conferring upon the commissioners their various powers and defining their duties, give to them any such right. See Swan’s Stat. 205, sec. 7; Ibid. 206, secs. 9,TO, 12; 964, sec. 7; 968, sec. 31; 826, sec. 31; 389, sec. 2; and, also, 1019, 740-41, 638, 567.
    A county is a quasi corporation; the powers given to its commissioners are specific, and they can • exercise no powers not expressly granted, or necessarily incident to those granted. Gallia County v. Holcomb, 7 Ohio Rep. 232, part I.
    The money sought to be recovered in this case, is required, by the 59th section of the law relating to fees, &c., (Swan’s Stat. 407,) to be paid to the county treasurer, and therefore suit should be brought by him. Treasurer of Perry County v. Moeller and Hood, 11 Ohio Rep. 429.
    
      Second: ' We claim also that the clerk has, by law, no power to compel the payment of fines, costs, &c.; that he is not the proper person to receive them, when collected; and, if paid to him by the parties, or by the sheriff, he does not receive them in his official capacity, and his sureties are not liable.— They only undertake to be responsible for such acts of the clerk as are comprehended by the law as a part of his duties. Lewis v. Johnson, Walker’s Rep. 206; 3 Leigh’s Rep. 703; 13 Mass. Rep. 260; Swan’s Stat. 407; Local Laws of 1843, 152-3.
    Third: The declaration is defective, because it does not disclose the character or class of offences upon which the indictments spoken of were founded. All the fines, &c., collected by indictment do not belong to the county, but some go to the State, some to the township, &c.- The commissioners have no right to sue, except for funds belonging to the county. 13 Serg. and Rawle 238. And the cause of complaint should be set out so fully, as to show that the cestui que use has the right to sue, and that the defendant may be well and distinctly apprised of what he is called on to answer. 6 Ohio Rop. 151.
    Fourth: The sureties in this bond are not bound by any admissions made by the principal, 'nor are they liable upon an account stated by him. 4 Randolph’s Rep. 317. And the action being joint, there must be a joint recovery. 4 Bibb, 596.
    
      Brough &f Zinn, for Plaintiff.
    To determine the first question, as to the right of the County Commissioners to bring this suit, let us ascertain what their duties are, as prescribed by the statute:—
    Swan’s Stat. 205, sec. 7, constitutes them a body corporate and politic, with power to sue and be sued. As will be seen by subsequent authorities, this is a general power; and the subsequent specification of certain cases in which they shall sue, are not words of limitation, but particularize certain cases, in which, without such provision, it might be doubtful whether they had authority to sue without such power being specifically • - Slven-
    Ibid. 206, requires the commissioners, annually, to count the* funds in the treasury, and settle with the county auditor and treasurer. This provision makes them the guardians of the county treasury; and also makes it then duty to supervise the accounts of the servants who have the immediate control of the county funds.
    Ibid. sec. 10, specifies different causes for which the commissioners can expend the funds of the county. If they are at all times called upon to draw money out of the treasury, and expend it, should they not have the power of securing that for the county which, by law, belongs to it ?
    Ibid. sec. 11, authorizes them to permit the county auditor to draw upon the treasury for certain repairs, not exceeding fifty dollars. For drawing out of the treasury of all sums to a larger amount, it appears that the direct interposition of the commissioners are required, except in such cases where the sum is fixed by law.
    Ibid. sec. 12, gives the commissioners power to release fines, debts, or amercements due the county, in certain cases. Here is the direct power given to them over the various causes of action set forth in the declaration. The very reading of this section contemplates the power of the commissioners to sue for these fines; and does it not revert, as a necessary incident of power, that, -where they can dispose of, they must necessarily have the power to collect ? This power is somewhat modified by an amending act. Swan, 1019.
    Ibid. 740, gives them power to contract for building necessary public buildings for the use of the county. Ibid. 741, to provide the means for the payment of claims against the county in consequence of these erections, and to expend any money in the treasury, belonging to the county, for that purpose.— Ibid. 742, to levy a tax to discharge the above demands. Ibid. 206, to make contracts, &c., for repairing of the county, roads, &c.
    
      Ibid. 964, sec. 7, provides that the books and accounts of the county treasury, and all money remaining in the treasury, shall, at all times, remain open to the inspection of the county commissioners. Is it possible that the law gives- the commissioners such manifold powers to examine and ascertain when the interests of the county are affected, and still no power to sue when an injury takes place; that it gives them power to discover when the county funds have been misapplied, but no power to prevent it ?
    The county treasurer shall annually make a settlement with the commissioners, when they are authorized to make certain allowances to him. Ibid. 968, sec. 31.
    When the commissioners think the bond of the treasurer not sufficiently large to cover the amount of funds in the treasury, they are authorized to require of him an additional bond. Ibid. 970.
    Various other statutes authorize them to make appropriations from the county treasury, in different ways, and to different officers; showing that all matters pertaining to the general interests of the county, and not given in charge specifically to other officers, are placed under the control of the commissioners. Among .these statutes are the following: Swan, 836, sec. 31; Ibid. 389, sec. 1; Ibid. 638; Ibid. 641, 813, 815, 816, 913, 840, 640, 161, 611, 570, 573.
    Now, let us inquire what powers are vested in the commissioners, according to the decisions of our courts:—
    In Commissioners of Brown County v. Butts, 2 Ohio Rep. 449, it is decided, in general terms, that the commissioners are the representatives of the county; and whenever a cause of action exists against the county, they are the persons, by virtue of their office, who must be sued. It is only through them that the business of the county can be transacted, and the county acts through them.
    In Commissioners of Trumbull County v. Hutchens, 11 Ohio Rep. 371, it was held, that the commissioners were liable for the price of a press for the county seal, furnished by the clerk, without first consulting the representatives of the county. In no case, does the law make it the duty of the commissioners to furnish a press; but the Court held that, inasmuch as it was made their duty to furnish a court room and “ stationery,” a press was a necessary incident, and therefore necessarily inclucluded in their incidental duties. In the various citations which we have given, it is made the duty of the commissioners to count the county funds, and see that they are safely kept. Is it not a necessary incident to this duty, that they should see that no person retains what, by krvy, is made payable into the county treasury ? This is a strong case, to show that the implied powers we claim for the commissioners, must exist in them.
    In Reynolds v. Commissioners of Stark County, 5 Ohio Rep. 205, it is decided, that the commissioners have power to sell the real estate belonging to the county, vested in them for the use of the county. This power is no where given in express terms to the commissioners, and is .implied. Would it be a further stretch of their implied powers to say they shall take care of the county funds ?
    If this action cannot be maintained, then the practice in this State has been illegal; for we find numerous cases where the commissioners have brought and sustained similar suits, without their right being questioned.
    
      Commissioners of Clermont County v. Lytle, 3 Ohio Rep. 289, was an action for a money demand against Lytle. The suit was maintained in the name of the commissioners without objection.
    
      Commissioners of Scioto County v. Gherkell, Wright’s Reports, 494, was an action for alledged illegal fees taken by the defendant, late an auditor of Scioto county. Although the commissioners were nonsuited, no objection was made to their right to maintain the suit.
    
      Smith’s Adm’r v. Commissioners of Licking County, 2 Ohio Rep. 312, was an action against the administrators of a surety on an official bond, given by a sheriff of Licking county. It was maintained in the name of the commissioners without objection. The sheriff’s bond, like the clerk’s, is given to the State. Swan’s Stat. 856.
    
      Ohio, for use of Commissioners of Guernsey Co., v. Find-lay, 10 Ohio Rep. 51, was an action on the official bond of the county treasurer, for a delinquency in not accounting for the funds received into the county treasury. The bond of the treasurer is similar to that of the clerk. Swan’s Stat. 963. No objection was made as to the form of the action; and, from the defence made in that case, it is thought this point would have been made, if the eminent counsel in that case had thought it could have been taken with any chance of success.
    But, it is contended that the interest of - the county does not sufficiently appear in the declaration. The allegation is, that these “ fines, fees and costs, are payable into the county treasury.” This allegation, we submit, is sufficient. Besides, the interest of the county can be shown in the progress of the suit.
    The case of The State, for the use of the Executors of Spencer, v. Coffee, 6 Ohio Rep. 151, is in point. It was an action on a sheriff’s bond; and the same objection was then made that is now. The Court say, the act under which this suit is brought, (Swan’s Stat. 161,) “ does not prescribe any ‘ method of setting forth-the nature of the interest of the person '£ so suing, (for his own use,) except in the progress of the £ cause.” The declaration was sustained.
    The same rule is considered, in Numlin v. Westlake, 2 Ohio Rep., and sustained.
   Hitchcock, J.

This action is brought upon an official bond, pursuant to the act of February 23, 1816, entitled ££an £ act pointing out the manner in which suits may be prosecuted £ on the bonds of executors, administrators and officers.” This law authorizes any person, who may be injured by the misconduct of any officer, to commence a suit, in the name of the obligee, named in the bond of such officer, for his use; and if judgment is recovered by the plaintiff,- the person for whose use the suit is brought, shall have execution for such sum as shall have been ascertained to be his due, together with costs. It is manifest that no person can thus sue, unless he has an injury. But the withholding of money collected by an officer in his official capacity, would be, within the meaning of the law, an injury, for which an action could be sustained.

The first question presented by the demurrer in this case, is in substance, whether the commissioners of a county can sue for and collect debts due the county. We suppose there can be no doubt upon the subject. They are the representatives, the guardians of the county. By the seventh section of the act “ establishing boards of county commissioners,” (Swan’s Stat. 205,) it is expressly enacted, “that the board of com- £ missioners, in the several counties in this State, shall be capable £ of suing and being sued, pleading and being impleaded, in £ any court of judicature in this State.” It is only through this board of commissioners that suits in favor of, or against the county, can be instituted. The same section further authorizes and requires county commissioners “ to ask, demand, and re- £ cover, by suit or otherwise, any sum or sums of money, or £ other property, due to such county on account of advances £ made by them, on any contract with any person or persons, £ for the erection or repairs of any public buildings or bridges, or any other contract which, by the provisions of this act, £ they are authorized to enter into; and, in like manner, to £ sue for and recover in money the value or amount of any £ labor, or article of value subscribed instead of money, to aid £ in erecting or repairing public buildings or bridges, where £ such labor or article of value, upon their-requisition, shall not £ have been performed, delivered, or paid, in a reasonable £ time,” &c.

It is supposed by defendant’s counsel that, inasmuch as in this section certain cases are enumerated in which commissioners may sue for money due the county, that they are precluded in all other cases. If it be so,1 then it follows that; if a person is indebted to a county in any other manner, payment cannot be enforced by process of law. It would not do to establish any such principle. If Piatt, in his official capacity Clerk of the Court of Common Pleas, had received money belonging to the county of Hamilton, and it is alledged in the declaration that he had, then this suit was well brought in the name of the obligee in his official bond, for the use of that county. In no other way could the money be collected by process of lavy. Nor does this opinion in the least conflict with the case of the Treasurer of Perry county v. Hood, 11 Ohio Rep. 429, cited by defendant’s counsel.

The next objection to the declaration is, that “ it is no where £ averred therein, that the indictments wherein those fines, fees £ and costs arose, were determined in favor of the State of £ Ohio, and was of right thereafter the property of the county £ of Hamilton, and that the commissioners had a right to sue £ therefor.”

The averment in the declaration is, that Piatt, during his continuance as clerk, received, in his official capacity, $966 26, the same being fines, fees and costs, in suits heard and determined in the Court of Common Pleas of Hamilton county; and that the same were payable, and ought to be paid, into the treasury of that county. The declaration in the first count specifies the particular cases in which these fines, fees and costs were paid and received. It seems to the Court that, in this respect, it is sufficient.

It is next objected, that it is no where averred iii the de- £ claration for what grade of offences those fines, &c., were £ assessed and collected.”' ,

This was not necessary. If upon trial to a jury the plaintiffs shall claim fines, fees, or costs which do not of right belong to the county, they can, and unquestionably would be rejected. For the present purposes, it is sufficient that it is averred in the declaration that these fines, fees and costs were, of right, payable into the county treasury.

Again,— it is objected to the declaration, that ££it is not ( averred therein that Piatt was a qualified officer under the £ constitution .arid, the laws, and that the. supposed sum of £ money, claimed in plaintiff’s' declaration,’arose after such £ qualification, and came info his hands as the clerk of said f court de jure.”, ’ / . ’

' The declaration- sets forth the bond, the appointment of Piatt,' the delivery of .the bond, and its deposjt with the county treasurer, and ’that he-., entered upon the discharge of his duty as clerk, and so continued until February, 1844. It is not expressly alledged that ’he took the oath of office but ■ Whether he did or not, can make no difference. Under the circumstances, neither he nor his sureties wóuld be' permitted'to defend themselves, upon the ground that he-was an usurper. The declaration further’alledges that, while he was thus in- the exercise of his office, he received the money in controversy. If this be so, i.t is immaterial., whether the fines were assessed; or the costs accrued, before of'during the term of his official appointment.. In either' event,, being received by him in his official capacity, they are within the condition of his .bond.

The last objection is, ££ that it cannot be gathered from said declaration that the £ certain indictments ’ therein spoken of £ ever matured into judgments, ór assumed any other judicial £ form, by which said fines, &c., could have been collected by £ an officer-in his'.capacity-as such.” -' -'

Let- this be as it may, it appears from the-declaration .that Piatt was an officer., and that as' such officer 'he did collect these fines,’fees,-and costs, and -’that they beloiiged 'to th'e coun-’ ty; and we are not to presume that he collected them withqut authority of law.

In the opinion of the .Court, the declaration is. sufficient in law to entitle the plaintiffs to maintain their action.' The de- ' fendants will have leave to withdraw the demurrer and plead. '

Read, J. being, connected with one of the parties, took no part in the decision of-this case.1 /  