(Highland County Comiuon Pleas.)

March 16, 1900.

#### THE LYLE PRINTING CO v. THE COMMISSIONERS OF HIGHLAND COUNTY.

<1). Under sec. 1264, R. S., which provides that “the county commissioners shall furnish to the clerk ail blank books,stationery, etc., which articles the clerk may procure and shall be allowed for upon his certificate,” all the clerk has power to do is to select such books and supplies as ho may need; and that after his selection the bill shall be allowed for upon his certificate, in the discretion of the board of county commissioners as to the amount to be paid therefor, and as to whether the different articles are necessary to the prompt discharge of his duties.

(2). Under sec. 2834-6, R. S., the county commissioners can not make a valid contract for such supplies until the county auditor has certified that the money required for the payment of the obligation, arising from the contract, is in the treasury to the credit of the fund upon which it is to be drawn,or that the tax has been levied and placed on the duplicate, and is in process of collection, and not appropriated for any other purpose.

WALTERS, J.

This case presents to the court questions as to the proper construction to be given to several sections of the statute as to the right of the commissioners to allow and pay out of the. county treasury bills growing out of contracts entered into by the several county officers for supplies, stationery, etc.

The bills for supplies in the several cases were procured by the several respective county officers for their use, and it is admitted that they are necessary for the proper conduct of their offices; but it is contended that these officers had no right to incur these bills; that it is the duty of the county commissioners to make all contracts for the purchase of supplies for each of the different offices, and that it was necessary before such contract is binding, and before the commissioners are authorized to direot the auditor to draw his warrant upon the county treasurer, that the auditor shall have certified under sec. 2834b, Rev. Stat., that the money required ior the payment of such obligation, arising from the contract, is in the treasury to the credit of the fund upon which it is to be drawn, or that the tax has been levied and placed on the duplicate, and is in process of col ■ lection, and not appropriated for any other purpose.

As to the county clerk's bill, the sec. 1264, Rev. Stat., has given the clerk larger authority in the purchase of supplies than any other county officer, and a disposition of the power of the clerk under that section will probably furnish a rule for an easy solution in respect to the other officers.

It is provided in that section that the county commissioners shall furnish to the clerk all blank books, stationery, etc. which articles the olerk may procure and shall be allowed for upon his certificate.

In Ohio v. McConnelll, 28 Ohio St., 589, the court had there under consideration the construction of this statute as it then existed, and it declared that the olerk was not authorized by this statute to fix conclusively the amounts which shall be paid by the county for blanks or other things necessary to the prompt discharge of the duties of the officer. The statute then under consideration contained the words, “and paid for,” immediately following the word “allowed,” and that part of the section then read “and shall be allowed and *183paid for upon his certificate.” Since that decision the words “and paid for,” have been dropped from the statute, apparently in conformity to that decision. And it would seem clear, those words being dropped, and from the language used by the supreme court,that now the olerk has less power, and that in reality all the clerk has power to do under this section is to select such books and supplies as he may need; that is, procure them, but the county commissioners shall furnish; and that after his selection the bill shall be allowed for upon his certificate in the discretion of the board of county commissioners as to the amount to be paid therefor, and also, in the language of the statute, as to whether the different articles are necessary to the prompt discharge of his duties. In other words, there is no binding obligation when the clerk procures these supplies until the bill is allowed by the commissioners, and when so allowed,it becomes a binding contract on the part of the county, provided sec. 2834b, Rev. Stat., has been complied with ; and it would seem to the court plain, that if the bill shall be allowed by the county commissioner’s, and it then becomes necessary to appropriate the money for the payment of suoh supplies under the contract thus made binding, that that section should be complied with before a recovery can be had. The provisions of the section are sweeping, and the only exception is contained in sec. 894, Rev. Stat., where it is provided that no bill against the county shall be paid otherwise than upon the allowance of the county commissioners upon the warrant of the county auditor, except where the amount is fixed by law, or is authorized to be fixed by some other person or tribunal. And the supreme court have said the clerk is not authorized to fix the amount due for supplies he may prooure; and therefore sec. 2834-B, Rev. Stat., would apply to the clerk as well as to all other county officers.

H. A. Pavey, for Plaintiff.

Oliver N. Sams, Prosecuting Attorney, for Defendant.

The circuit court, in State ex rel. Fanning v. Com’rs Cuyahoga Co. 19 C. C., 627, has decided that the provisions of that section are mandatory.

Seotion 2834b, Rev. Stat., as well as the section on the same subject with reference to municipalities, have each and both the object of rendering more effective the economical administration of the affairs of the respective offioers, and the prevention of improvident contracts being entered into, and the statute made applicable to Cuyahoga county emphasizes this principle by requiring that the county officers on the first day of March of each year shall make out a list of office supplies and furnish the same to the county commissioners who will then advertise for bids for such material.

An entry will be furnished in conformity to this opinion.