#### State of Ohio for the use of The Board of Education of the School District of Cincinnati *v.*Griffith et al.

*.Public officer liable for malfeasance in office, when*— Sureties *on official bond*— Answerable *only within the letter of their contract*— For *unfaithful performance of his official duties*— Not *for dereliction outside limits of his office*— Section *8985, Revised Statutes*— Duty *of cleric of board of education.*

1. A public officer is personally, and may be even criminally, liable for malfeasance in office; but tbe sureties on his official bond are answerable only within tbe letter of their contract for tbe unfaithful performance of bis official duties and not for dereliction outside of tbe limits of bis official duties. *State*v. *Carter,*67 Ohio St., 422, distinguished.

2. Tbe clerk of a board of education is not authorized, nor is it made bis duty by statute, to receive and become tbe custodian of tuition funds belonging to such board, and such board is not empowered by section 3985, Revised Statutes, to make a rule conferring such authority or imposing such duty on tbe clerk of tbe board; and where pursuant to such a rule, the clerk of tbe board was permitted to and did receive and have tbe custody of tuition funds which be failed to safely keep and account for, tbe sureties on bis statutory bond are not liable therefor.

(No. 9051

Decided April 3, 1906.)

Error to the Circuit Court of Hamilton county.

On the thirty-first day of May, 1887, the Board of Education of the School District of Cincinnati adopted a rule, which reads as follows: '“None but the children, wards and apprentices of actual residents of Cincinnati or free-holders whose homesteads are in part in Cincinnati shall, under any circumstances, be admitted free to the common schools of the city; and in cases of wards and apprentices Record evidence of the right of admission shall be *81furnished whenever required. Children, wards and apprentices of non-residents may be admitted by the trustees (school committee) of any district upon payment, in advance, to the clerk of the board of the following tuition fees, viz.: High schools, $70.00 per annum; intermediate department, $40.00 per annum; district department, $24.00 per annum; deaf mute school, $24.00 per annum, payable quarterly, semi-annually or yearly. ’ ’

Thereafter, on the sixteenth day of April, 1900, one George R. Griffiths was chosen clerk of the board of education of the Cincinnati school district for the term of three years and until his successor should be chosen and qualified, and he immediately entered upon the discharge of the duties of said office. On the twenty-first of May, 1900, the said clerk gave bond to the state of Ohio in the sum of five thousand dollars, conditioned upon the faithful performance of all the official duties required of him as clerk of said board, and the defendants became and were sureties thereon; and upon the death of the said George R. Griffiths, which occurred on the first day of October, 1900, it was found that a large sum, to-wit, the sum of $4,668.75, tuition fees for attendance in the public schools in the city of Cincinnati, had come to his hands and had been converted by said clerk' to his own use. ■ Thereupon suit was begun in the court of common pleas of Hamilton county to recover from the defendants, as the sureties' of the said clerk, the amount claimed to be due from the clerk. The defendants demurred to the petition upon the ground that the same does not state facts sufficient to constitute a cause of action against them. These demurrers were sustained in the court of common pleas and judgment was ren*82dered in favor of the defendants. The judgment of the court of common pleas was affirmed by the circuit court and this proceeding in error is prosecuted to reverse the judgments of the circuit court and the court of common pleas.

*Mr. H. M. Rulison,*prosecuting attorney; *Mr. Charles J.*Hunt,.city solicitor; *Mr. John V. Campbell; Mr. Hartwell J. Cabell*and *Mr.- Morrison R. Waite,*for plaintiff in error.

While, under the provisions of sections 4016, 4052 and 4057, a report or accounting of all receipts and expenditures was required of the .clerk on September first, and while the bond under his last election was not given until May 21,1900, his sureties were liable, if at all, for all sums unaccounted for received on and after the last preceding accounting day, which was September 1, 1899. *Kelly*v. *State, 25*Ohio St., 567; *Farrar*v. *United States, 5*Pet., 373; *Bruce*v. *United States,*17 How., 438.

No point is made by counsel for the sureties except on the main question: “Is there any liability?’’ They argue that because section 4042 makes the city treasurer the,,treasurer of the school funds, no school moneys might lawfully come into the hands of the clerk; that the rule adopted by the board of education and. set up in the petition is in contravention of the statutes, and, therefore, of no force; that the liability of sureties is *strictissimi juris,*and, because the clerk received these moneys without authority of law, the sureties can not be called to account for his default with respect to them.

In approaching the argument, we concede two things:

*831. The liability of sureties is *strictissimi juris.*

*2.*If the rule set up in the petition contravenes the statutes, it is of no force.

In defense of our petition we urge two propositions :

1. The rule relied on in no respect contravenes the statutes, but was passed in pursuance of authority given by them.

2. Whether or not the rule was valid, the clerk failed in his duties in two respects:

*a.*He issued no orders to the treasurer on which these sums would have been paid into the treasury; and,

*b.*He made no report to the county auditor of these receipts.

*The rule does not contravene the statutes.*

It is not claimed by counsel for the sureties that the statutes expressly prohibit the receipt of school moneys by the clerk. What the statutes do is to make the city treasurer the treasurer of the school funds, and forbid him (the treasurer) to receive such school funds as were appropriated by the clerk, “except upon the order of the clerk.”

Counsel asked the court to infer that because a treasurer is provided by law, no one but the treasurer could, under any circumstances, lawfully receive money due the board. The statutes do not say so*, and we find nothing in them to indicate that it was intended to do other than make the treasurer the ultimate custodian of the funds.

The defendants ’ surety rely principally upon section 4047 as prohibiting, *by implication,*the receipt of any moneys by thé clerk.

The mention of the clerk in section 4047 is only incidental in connection with the inhibition applica*84tile to the treasurer and to the county auditor in section 4048. If no money other than that received from the county treasurer is paid to the school treasurer, except upon the order of the clerk, and the «clerk performs his duty in the making of the report, ¡required by section 4047, to the auditor of all miscellaneous receipts by the treasurer, and in the making •of the statement required by section 4048, the auditor will be in a position to know the exact amount in the hands of the school treasurer, so as to determine whether, under , section 4048, any further moneys can be paid by the county treasurer to such school treasurer. The defining of the duties of the school "treasurer and the prescribing of the method of doing business, so that the amount of money to be entrusted to the school treasurer can be determined by the county auditor, seems to be the object of the two sections above mentioned. In so far as such sec-lions prescribe, in any way, the duties of the clerk, ■the sections are cumulative, and not in any way limitations upon the duties with which the clerk may be charged by other sections of the statute or by the board of education, in pursuance of its general powers. Sections 3985 and 4013, Revised Statutes.

The board is to prescribe the terms upon which others than children, wards or apprentices of actual residents of the district are to be admitted to the schools. The rule adopted provides that the children, wards and apprentices of non-residents may be admitted upon payment in advance to the clerk of the board of certain tuition.

The allegation of the petition is that said rule was in full force and effect at the time of the election and •qualification of the defendants’ principal as clerk *85of the hoard of education, and was so in effect up to and at the time of his death, and the sureties are-presumed to have known of the duties imposed on their principal, and to have had them in contemplation when they signed his bond. The statute gave the board the power to impose terms, and one of the terms was that tuition should be paid to the clerk. A sufficient reason, if any is necessary, for this rule, is the saving of money, time and inconvenience to the children who had to pay tuition. Most of them non-residents, they would attend the schools nearest their homes, and these schools would, ordinarily, be in the outlying precincts of the district, most remote from the offices of the clerk and the treasurer of the board. It would likewise save the clerk and the treasurer time and annoyance in that the collections might be made of all tuition pupils of a school at one and the same time. *State*v. *Carter,*67 Ohio St., 422; Dillon’s Municipal Corporations, sec. 308.

By section 3985 the board is empowered to make riiles and regulations for its government, and the government of its appointees. By section 4013 the board is authorized to admit non-resident pupils upon such terms, or upon payment of such tuition as it may prescribe. The board, in pursuance of this authority, passed the rule of May 31,1887, which provided for the payment of tuition to the clerk. We had just as much authority as had the council of Madisonville, and it was exercised as formally and for as good reasons. A legal duty was imposed, and that duty was violated. Why should the bondsmen escape?

If the clerk had received this money *colore officii?*and not *virtute officii,*we submit that the sureties *86would be liable for Ms default with respect thereto. Mechem on Public Officers, sec. 284; *Feigert*v. *State,*31 *Ohio St.,*432.

So that we have authority on which to hold the sureties, even if the rule impose no duty.

*If the rule was bad the sureties are, nevertheless, liable*for—

*a.*No money other than that received from the county treasurer might be paid to the treasurer of the school funds, except upon the order of the clerk. When such money was offered to him it was his duty to issue an order to the treasurer to receive it, and he failed in this; and,

*b.*By sections 4047, 4052 and 4057 he was required to report the amount of miscellaneous receipts to the county auditor. He failed in this. Throop on Public Officers, sec. 244.

If there had been no defalcation, and nothing had been lost to the school district, we would still be entitled to nominal damages for the clerk’s failure to perform the duty imposed with respect to the ma.kiug of his annual report, and the demurrers should have been overruled for this reason.

In their supplemental brief plaintiffs in error cite and comment upon the following authorities: *Halbert*v. *State,*22 Ind., 125; *Jones, Auditor,*v. *Commissioners,*57 Ohio St., *189; City of Greenville*v. *Anderson,*58 Ohio St., 463; *Abbott*v. *Inskip,*29 Ohio St., 61; *Railway Co.*v. *Gaffney,*65 Ohio St., 104; *State*v. *Carter, 67*Ohio St., 422; *Meyer*v. *Muscatine,*1 Wall., 384; *Woodborne*v. *Scarborough,*20 Ohio St., 57.

*Mr. Powel Crosley; Mr. E. S. Aston*and *Mr. Frank F. Dinsmore,*for defendants in error.

*87As .said by the solicitor in his brief, the moneys received directly from the 'county treasurer are not required to be paid to the school treasurer upon an order of the clerk, the reason being that the system of checks contemplated by the statute is fully maintained without the clerk’s order. The county auditor, as well as the county treasurer, have this check upon the school treasurer and the statutes provide for an annual settlement between the school treasurer and the county auditor. The purpose of the report or account provided in section 4047 to bé made by the clerk of the board to the county auditor, is for the purpose of preserving this scheme of checks, so that the county auditor will be advised of the moneys received by the school treasurer other than that which came to him directly from the county authorities. In the annual settlement to be made under section 4044, the county auditor would have in his possession, derived from other sources than the school treasurer, the exact amount of money received by him in the course of the year.

It is not upon any inference or implication of statutory duties that we make this claim. The scheme is apparent upon the face of the statutes and we merely seek to maintain'it. The plaintiff in this case wants to destroy it.

A consideration of the statutes will further develop the correctness of our position. Section 3980.

Sections 3897, 3982, 3984, 4042, 4043, 4044, 4047, 4048, 4049, 4050, 4053, 4054, 4055, 4056, Revised' Statutes. It will be seen by these sections that there is no authority given to the clerk to receive or disburse any money. Several sections of the statutes, as cited, particularly negative the idea that the clerk is a receiving or disbursing officer in any sense of *88that term. He-is a clerical and recording officer, the bookkeeper, in other words, of the board, having charge of its records and its accounts. This is made clearer when taken in connection with the statutes relating to the office of the treasurer.

At this point attention should be called to the term “miscellaneous receipts” as used in section 4047 and the term as used in the amended petition. The term as used in the statute evidently refers to all money other than that received from the county treasurer. And in the case at bar would include the tuition fees, together with the other receipts denominated “miscellaneous ’ ’ by the plaintiff in this case. The rule, however, refers only to the tuition fees and gave no authority for the collection of the other moneys set out in the amended petition.

The only statute which is cited and which it is claimed conflicts with the statutory scheme claimed by us to exist is section 4027. That section was repealed May 12, 1902 (95 O. L., 622). It provided for a fine for certain offenses, to be collected in an action in court, instituted by the board in the name of' the state. And the clerk was made the officer in charge of the law suit on the- part of the board. Necessarily, it was proper, that he, as the recording and auditing officer should have charge of the litigation, and upon the completion of that litigation should collect and pay over the money produced as the result of it. While it is true that this statute to a certain extent would, authorize the clerk to receive from the attorney of the board, as the result of the judgment of the court, certain moneys, it can easily be seen that this in no manner conflicts with the statutory scheme of checks to which we have referred, for the reason that the money collected *89by him would be a matter of court record and public notoriety.' We do not believe, therefore, that this section in any way conflicts with the argument made by us. We do not know the reasons for the repealing of the section, but it may have been for the very reason now claimed on the part of the plaintiff.

The rule of the board was adopted, under two sections of the statutes. Sections 4013 and 3985.

The first section, in authorizing the board .to prescribe the terms for admission of persons to the schools and the payment of tuition, confers no authority to designate the officer to whom payment is to be made. It is the amount of the payment which the board has the authority to prescribe and not the person to whom the payment should be made. The statute prescribes the person to whom the payment should be made and the manner of making those payments in detail. That is sections 4047 and 4055 provided that the payment should be made to the treasurer upon the order of the clerk. Consequently this section gave no authority for the passage of the rule.

The second section referred to contains n© direct authority for the passage of such a rule as we have here. 'And as these two sections are the only ones claimed as authority for the rule, we think the plaintiff fails to maintain its case in this respect.

There being no statutory authority for the clerk to receive the money, and the rule being invalid, for that reason, the defendants claim that in view of the principle applicable to sureties, there is no liability on the bond in this case. The solicitor approaches this question with a concession of the principle that the liability of a surety is *strictissimi juris,*but. he *90seems to be unmindful of the force of the rule, which he admits. To appreciate the full effect of that principle of law, see the language of Judge Ranney in *McGovern et al.*v. *State of Ohio,*20 Ohio, 93; *State*v. *Medary,*17 Ohio, 554; *State of Ohio*v. *Cutting,*2 Ohio St., 1.

We deem it advisable to present some of the authorities in which courts have had occasion to apply the rules of law applicable to sureties, under facts substantially the same as those in the case at “bar. It is said in one of the briefs that these cases are inapplicable, for the reason that the bonds were conditioned not for the faithful performance of ■duties, but for the faithful accounting of moneys. In some of the cases the bonds read one way, and in •some cases the other, and a careful examination of these authorities has convinced us that there can be no distinguishing of cases upon this line of argument. And this court, in *City of Greenville*v. *Anderson,*58 Ohio St., 463, did not mean to draw such a distinction as would be applicable to the state of facts now before the court. *The People*v. *Pennock,*60 N. Y., 421. This case is in principle, and as to the facts, practically the same as the case now before the court, even to the passing of the rule by the board authorizing the receipt of the money by the clerk. *Orton*v. *City of Lincoln,*156 Ill., 499; *State*v. *Moores,*56 Neb., 285; *County of San Luis Obispo*v. *Farnum,*108 Cal., 562; *State*v. *Bonner et al.,*72 Mo., 387.

The following cases, in addition to those cited, are •directly in point and fully sustain the proposition ■claimed by us:

*Knox County*v. *Goggin,*105 Mo., 182; *State ex rel.*v. *Moeller,*48 Mo., 331; *Governor*v. *Perrine,*23 Ala., *91807; *People, etc.*v. *Cobb,*10 Col. App., 478; *Lowe et al.*v. *Guthrie,*4 Okla., 287; *Ward*v. *Stahl et al.,*81 N. Y., 406; *Heidenheimer Bros.*v. *Brent et al.,*59 Tex., 533; *People*v. *Hilton,*36 Fed., 172; *United States*v. *Rogers et al.,*81 Fed., 941; *Scott et al.*v. *The State, etc.,*46 Ind., 203; *Keith*v. *Fenelon Falls Union School Section et al.,*3 Ont., 194; *McKee*v. *Griffin,*66 Ala., 211; *Leigh*v. *Taylor,*7 Barn. *&*Cr., 491; *Nolley et al.*v. *Callaway County Court,*11 Mo., 447; *Saltenberry*v. *Loucks,*8 La. Ann., 95.

The language of these cases is so strong and its applicability to this case so apparent, that they would seem to be conclusive, rendering it unnecessary to make any further statement.

The reasons for this class of decisions are discussed by Stearns on Law of Suretyship, section 181, and seem to be that if the case were decided otherwise, there would be no remedy against the official misconduct of officers. It would seem a sufficient reason for this class of cases that a public officer undertaking to execute a writ is liable for any wrongful act he does in the execution of it, whether it be against the person mentioned in the writ, or some one else. In no case can it be said that he steps outside of his duty, because everything that he does in that line is in attempting to enforce the writ. In this connection, it may be noted that the decisions are further to the effect that an officer who acts absolutely without a writ of any kind whatsoever, acts as an individual, and his sureties are not liable.

The solicitor, for the plaintiff in error in his brief, apparently invokes the doctrine, which we will call *colore officii,*to sustain the argument on this part of the case. When the limits of that doctrine are fully *92understood, as presented by the authorities, it will be seen that it is of no avail in this case.

There is a line of cases represented in this state by *Ohio, etc.*v. *Jennings et al.,*4 Ohio St., 419, and by *Lammon*v. *Feusier,*111 U. S., 17, in the United States courts, to the effect that an officer acting *colore officii*is liable on his bond for official misconduct. A late case following the same rule is *Drolesbaugh*v. *Hill,*64 Ohio St., 257. *In all of these cases,*many of which we hereafter cite, the state of facts involved the case of a public officer, usually a sheriff, marshal or constable, seizing the property of the wrong person under a writ of execution or proceedings in attachment against another. The Jennings case was a trespass of this kind, and the decision there was based upon the case of the *People*v. *Schuyler, 4*N. Y., 173. The Drolesbaugh case was of the same character and looks for authority to the Jennings case.

*Sangster v. Commonwealth,*17 Gratt., 124; *Grandstaff*v. *Ridgely, Hampdon & Co.,*30 Gratt., 1; *Stuart*v. *Madison,*1 Call, 481; *Commonwealth*v. *Stockton,*5 Mon., 193; *Hardin’s Exrs.*v. *Carrico,*60 Ky., 289; *State*v. *Moore,*19 Mo., 369; *Knox County*v. *Goggin,*105 Mo., 182; *State*v. *Bonner,*72 Mo., 387; *Sample et al.*v. *Davis, 4*G. Greene, 117; *Turner*v. *Killian,*12 Neb., 580; *Nebraska*v. *Moores,*56 Neb., 285; *Holliman*v. *Carroll,*27 Tex., 23; *People*v. *Schuyler, 4*N. Y., 173; *Heidenheimer Bros.*v. *Brent,*59 Tex., 533; *Van Pelt*v. *Littler.*14 Cal., 194.

Davis, J.

There is- no- proposition of law more firmly settled in this state than that sureties are not liable beyond the letter of their contract. In this case the defendants are sureties on the bond of the *93clerk of the hoard of education, executed as provided in section 4050, Revised Statutes, and conditioned “that he shall faithfully perform all of the official duties required of him as clerk of said board. ’ ’ The clerk was a defaulter for a considerable amount of tuition fees which he had received and failed to pay over. Was this a breach of the bond?

There is nothing in the statutes which define the duties of the clerk of the board of education, which' makes it his duty to receive and disburse tuition fees. Indeed we fail to find any authority in the statutes for the clerk of the board of education to receive or disburse any money whatever, except fines for truancy, as provided in section 4027, which has been repealed since the commencement of this action. With that exception the duty of receiving, keeping and disbursing funds seems to be exclusively imposed upon the treasurer of the district. Section' 4042, Revised Statutes. Yet it is contended in behalf of the plaintiff that the board could, and did, enlarge the duty of the clerk in that respect by virtue of section 3985, Revised Statutes, a part of which reads as follows: “The board of each district shall make such rules and regulations as it may deem expedient and " necessary for its government and the government of its appointees and pupils. ’ ’ A number of years before this bond was executed the board adopted a rule the material portion of which, so far as it affects this controversy, is as. follows: ‘ ‘ Children, wards and apprentices of non-residents may be admitted by the trustees (school committee) of any district upon payment, in advance, to the clerk of the board of the following tuition fees,” etc.; and under cover of that rule the clerk received and handled the money for •which he is in default. The statute gives to the *94board tbe power to make rules and regulations for tbe government of itself, its appointees and pupils :■ that is, rules for their management, control and direction, merely disciplinary regulations. It could not for a moment be assumed that section 3985 confers upon the board the power to legislate, so as to confer upon itself and its appointees powers and duties which are not found in the acts of the general assembly; for the power of the board to make rules is just as broad for itself as for its appointees. If it can enlarge the powers and duties of its appointees, beyond the statutory limits, it can enlarge its own powers and duties. Such power could not be, and in our opinion was not intended to be, conferred upon the board of education by the general assembly. The-permission to receive tuition fees which was given to the clerk by the rule, was therefore outside of and beyond the official duties of the clerk.

The foregoing reasoning would lead to the exoneration of the sureties.

But it is. insisted that the receipt of these moneys-by the clerk was *colore officii,*if not *virtute officii,*and that for acts *colore officii*sureties are held responsible in this state. While there has been confusion of terms in some cases, and possibly a confusion of classification in some instances; yet this-conclusion results from the cases in this state and elsewhere, that there are three classes of cases against sureties on official bonds: one class in which the officer acts, *virtute officii,*within his official authority but unfaithfully or improperly exercises his official duties, and another class in which the officer while acting *colore officii,*with pretense of official authority, is guilty of trespass upon person or property. Of this class illustrations are found in *95*Story*v. *Jennings,*4 Ohio St., 418, and *Drolesbaugh*v. *Hill,*64 Ohio St., 257. In both of the classes, already named the sureties are generally held to be liable. The third class is of those cases in which the officer has been guilty of misconduct which is wholly outside of the line of his official duty as defined by law. In this class of cases the sureties have generally,, and we believe upon the soundest of reasoning, been held not to be liable. We refer this case to the third class and cite as illustrations the following cases: *State*v. *Medary,*17 Ohio, 554; *Wilson*v. *State,*67 Kan., *44; People v. Pennock,*60 N. Y., 421; *State*v. *Bonner,*72 Mo., 387; *Orton*v. *City of Lincoln,*156 Ill., 499; *State*v. *Moores,*56 Neb., 82; *County of San Luis Obispo*v. *Farnum,*108 Cal., 562. There are numerous other cases to the same effect some, of which are cited in the briefs of counsel.

The case of the plaintiff is not helped out by the contention that the clerk was guilty of a plain official duty in that he did not report these receipts and pay them over to the treasurer-; because the loss was-occasioned not by the negative acts of not reporting or paying over, but by the direct, affirmative act of receiving that which he could not lawfully receive and converting the same' to his own use.

In *State*v. *Carter,*67 Ohio St., 422, cited by plaintiff, the question of the liability of sureties was not involved in the record, nor argued. The whole contention was whether the officer himself was chargeable with certain funds so as to be within the terms of the statute defining and punishing embezzlement. It was held that he was so chargeable; and the judge who delivered the opinion of the court expressly directed attention to the fact that the question of the *96liability of the sureties of the defaulting officer was not before the court and was not passed upon.

The judgment is

*Affirmed.*

Shauck, C. J., Price, Crew, Summers and Spear, JJ., concur.