COUNTY MONEY.

[Hamilton Circuit Court,

November Term, 1889.]

Swing, Cox and Smith, JJ.

#### *STATE OF OHIO EX REL. SCHWARTZ v. JOHN ZUMSTEIN ET AL. GEORGE FOX v. JOHN ZUMSTEIN.

1. Prosecuting Attorney Cannot Sue to Get Back County Money Illegally Paid Out.

Where money is illegally drawn from the county treasury, the prosecuting attorney of the county, in the absence of a statute authorizing him to do so, can not bring an action in the name of the state, for the use of such county, and recover a judgment therefor. Section 1277, Rev. Stat., only authorizes him to sue in such manner to restrain a threatened misapplication of the funds of the county, or the completion or execution of a contract in contravention of the law of the state, or which was procured by fraud or corruption; and no other statute authorizes him to bring an action in cases like these. That duty is imposed upon the county commissioners as the financial representatives of the county.

*t.*Tax-Payer Cannot Maintain such a Suit.

Section 1278, Rev. Stat., only authorizes a suit by a taxpayer for the benefit of the county in cases in which the prosecuting attorney may by law bring such an action, and where on the written application of a taxpayer he has failed or neglected to do so.

Error to the Court of Common Pleas of Hamilton county.

*

 This judgment was affirmed by the supreme court without report, for the reasons given in the above opinion, October 17, 1893.

Smith, J.

The principal question in each of these four cases (two of each title) (raised in each by a demurrer to the petition,) is, whether the plaintiff has the legal *540capacity to sue therein. Two of the cases were brought in the name of the state on Ohio, by Schwartz, the prosecuting attorney of Hamilton county, Ohio, for the! use of the county, .-.gainst the three members of the board of county commissioners and the three members of the board of control (who had voted for the allowance of a bill which had been presented, by two persons who were or had been members of said board of control, for expenses claimed to have been incurred by them while members thereof), and against the county auditor who drew the warrant on the county treasury therefor, and against the person who had received the payment thereof from the treasury. The petitions allege that such allowance, drawing of the warrant and reception of the money, were illegal and unauthorized, and that no such expenses had been incurred, as the defendants well knew. And judgments were asked against the defendants for the amount so illegally paid, with interest thereon from the time of said several payments. •

Isaac J. Miller, attorney for plaintiff in error.

Rufus B. Smith, attorney for defendants in error.

The other two petitions are substantially similar, and relate to the same two transactions, and were filed after a judgment had been rendered against the plaintiffs in the first cases. They differ'in this, that they are brought by Mr. Fox, a tax payer of the county, on behalf of the county, and contain the allegations that before the bringing of the actions, he had applied, in writing, to the county commissioners to do so, which they had failed or refused to do.

There can be no question but that the board of county commissioners, the financial representatives of the county, is the body having the right to sue for and recover all sums of money due to the county, unless the statutes of the state specifically in certain cases impose that duty upon, or give that right to some other officer or person — and no other person or officer is authorized to sue for or recover any such money demand unless the right to do so is conferred by statute.

The counsel for the plaintiff in error argues that power is conferred on the prosecuting attorney to sue in such cases, in the name of the state, for the use of the proper county, by sec. 1377 Rev. Stat.; and on a tax-payer of the county, under the circumstances named therein, by sec. 1378. But in our judgment it is entirely clear that sec. 1377 only authorizes the prosecuting attorney to sue in the' name of the state, to restrain a threatened misapplication of the funds of the county, or the completion or execution of a contract in contravention of the laws of- the state, or which was procured by fraud or corruption, and that it gives no warrant whatever, for a suit by him to recover money actually drawn from the county treasury, however illegally this may have been done. That duty is imposed bv law upon the board of county commissioners.

Nor does sec. 1378 confer any such authority upon the tax payer. The evident meaning of that section is, that in those cases pointed out in sec. 1377 in which the prosecuting attorney may bring the action, or in any other case in which by other statutes he is authorized or required to bring suits, or institute any proceedings for the benefit of the county, (and there are many cases in which this is his duty — see secs. 363, 533, 74.6, Rev. Stat., and many others that mig'ht be cited), if on t-he written application of a tax payer to bring such suits, he fails or neglects, to do so, the tax payer, on securing the costs, is himself authorized to sue for the use of the county.

But in these cases, as we have held, these two sections do not authorize the prosecuting attorney to bring the suit, and we know of no statute which does', and the tax payer has no greater right than he — he can only sue where the prosecuting-attorney might, and on application of the tax payer has failed to bring the action. But in this case, the prosecuting attorney has not failed or refused, but has actually commenced actions, and there is no allegation in the petitions that he has failed to. do so. The judgments of the court of common pleas in the several cases, sustaining the demurrer to the several petitions, and dismissing the actions, are affirmed, with costs.