#### THE STATE ON THE RELATION OF REA *v. HAY.*

Quo warranto — removing county treasurer — defaulter—office.

The county commissioners may remove a county treasurer from office who fails to make return7 or to settle, or pay over money and is sued, and appoint another.

The authority to remove only extends to an *existing*treasurer.

The power to remove is committed to the discretion of the commissioners,* *to*be exercised only when the public good requires it, while the office is delinquent.

The person claiming an office on a quo warranto, must show his rights, that is not required of the state.

Quo warranto. The relation applies for a rule to show cause why a writ of *quo warranto*shall not issue against the defendant, to inquire by what authority he exercises the ■ office of treasurer of the county of Coshocton.

'*Spangler,*

prosecuting attorney, having been of counsel in this cause, was excused by the court from prosecuting the claim, and Messrs. *Stetson*and *W. Silliman,*counsel for the relator, were permitted to prosecute.

The following agreed state of facts was submitted to the court as the foundation of the application:

*Rea*

was treasurer for two years preceding June, 1832. He was re-elected in the fall of 1831. He failed to give security under the appointment on or before the first Monday of June, and on the next day was reappointed by the county commissioners, and gave bond according to law. On the following day, Rea, on settlement, was found in arrearas treasurer $2,183 15, which he acknowledged was due from him to the county, and when requested to permit the cash to be counted, said he had no part of the funds, and was in default for that sum,as collector, for the two years before June, 1832. The next day, the commissioners ordered suit to be brought on the *97bond, (dated 7 th June, 1830) for his. .failure to. make return, for his failure to make settlement, and for his failure to pay over the money in his hands according to law. Suit was brought the same day. # The next day the commissioners made the following entry on their minutes: ‘It appearing to the commissioners that S. Rea, treasurer, has failed to jnake the necessary returns; that he has failed to pay over all moneys with which he is charged, &c. and has appropriated to his own private use, public money, collected as taxes, to the amount of $2,007 86, leaving county orders out on interest, which have been presented to him and refused, and having refused to permit the funds to -be counted, though requested on the 8thinst. and suit having been brought against him and his securities on the bond, which is now pending. *Ordered,*That S.' Rea, treasurer, &c. be removed from his said, office, ahd said office is hereby declared vacant.’ On the same day the commissioners appointed Hay, the defendant, treasurer, who gave bond, and was qualified into office, under the appointment.

*Stetson*and *Silliman*contended,

that as the deficit was all for moneys received while in office under the first election, the term of which- had expired before the last 'appointment was made, under which he was acting when removed, the act of removal was a nullity, and he had a right to be restored to the office.

*Spangler*and *Stillwell,*contra.

Wright, J.

The relator being county treasurer in 1831, was reelected in October of that year, -but neglecting tp give bond before the first Monday of June then next, according to the law, (29 O. *L.*29) his office was held vacant, and a new appointment made by the' commissioners, and he was appointed to the office, gave bond, and entered upon the duties of the office, under the new appointment. Two days subsequent to this, the commissioners, upon settlement with the treasurer, found him in arrear $2,183 *15,*which he refused to have counted on request, stating that he had no part of the funds, but was in default that sum as collector for 1831. The day succeeding this, the commissioners ordered the auditor to sue the bond for 1830, for the failure to *.make return,*to make settlement, and pay over the money. On the day after the suit was brought, viz: on the 9th of June, the commissioners removed Rea from office, or, declared the office vacant, and, for the reason set forth in their entry, appointed the present incumbent, Hay. - These proceedings were had according to the provisions of the act prescribing the duties of county treasurers, (29 O. *L.*291) and this application seeks to reinstate Rea in the óffice, and eject Hay. . The person *98claiming, must show his right to be let into the office claimed. It is not required of the public to show its right.

The real question is, was Rea properly removed? The law provides that the treasurer who fails to make return, fails to settle or pay over money, may be sued, and that when suit has been brought against any delinquent treasurer, the commissioners may, at their discretion, remove him from office, and appoint another; 29 O. *L.*291, 2, 3. The authority to remove, extends only to an *existing*treasurer, who is delinquent. It is not incumbent on the commissioners to remove at all events; but the power is left to their discretion, to be exercised when the public good requires it. If, in their opinion, the incumbent, who is a defaulter, ought to be removed, so as to deprive him of the power to obtain and misapply more public'funds, they may remove. The public interest predominates; and whenever a *delinquent*officer is in office, so long as the delinquency continues, the right to remove is a subsisting right, to be exercised by the commissioners, in their discretion, to promote the public weal. We think the removal in this case, warranted by the law, and called for by the facts of the case. No objection has been made to the appointment of Hay. He has been qualified, and we leave him undisturbed.

Rule refused. Ordered, that the relator pay the costs of the application in sixty days.