text:
    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 /


source: Caselaw Access Project

author: Birchard, J.

license: Public Domain

text:
    In Bank.
    Dec. Term, 1846.
    Lessee of Samuel Overmyer vs. Cyrus Williams.
    The Ohio Railroad Company is authorized, by its charter, to purchase and hold real estate, when necessary for the procurement of materials, or for the economical construction of the road.
    This is a Writ of Error to the Court of Common Pleas of Sandusky County. .
    The action below was ejectment, and, from the bill oT exceptions filed in the cause, it appears that the plaintiff claimed the land in controversy, by' virtue of a deed from John Overmyer, dated April 9th, 1845. The defendant claimed the land by virtue of a deed from said John Overmyer, to the Ohio Railroad Company, dated October 4th, 1839, and from the company to himself, dated June 19th, 1842. The defendant also proved on the trial, that it was difficult, if not impossible, to procure materials for the construction of the road without the purchase of land; that this tract of land was bought by the company for the purpose of procuring materials and the right of way; that the road passed over a corner of this land ; that the timber growing upon it was used in the construction of the road; and that it was as convenient, or more so, to obtain timber from this land as from any other land, though abundance of timber might be procured in the neighborhood. Upon this proof, the Court of Common Pleas — before which the case was tried, without the intervention of a jury — rendered a judgment for the defendant.
    To this decision of the Court, the defendant filed exceptions, and assigned for error —
    First: That the Court erred in deciding that the Ohio Railroad Company had power, by their charter, to receive and hold a conveyance of real estate.

      Second: That the Court erred in deciding that the deed from John Overmyer, to the Ohio Railroad Company, passed the title of said land to the company.
    Third: That the Court erred in giving judgment for the defendant.
    To decide the questions presented upon this assignment of errors,. the case was reserved for decision here.
    jL. T3. Otis, for Plaintiff in error.
    Had the Ohio Railroad Company power, by their original charter, passed March 8, 1836, to receive and hold the legal title to the premises in controversy ?
    The third section of their charter says, “ that they shall be ' capable in law of purchasing, holding, selling, leasing and £ conveying estates real, personal and mixed, so far as the same £ shall be necessary for the purposes hereinafter mentioned, £ and no further.”
    The purposes here referred to, are defined in the 12th section of the charter to be, “the location, construction and repairs of a road not exceeding one hundred feet in width.”
    A clause in the 3d section of this charter fully empowers the’ company, and its agents, “ to enter upon, and use, any adjoining land; take stone, timber, materials,” &c.
    Thus it will be seen that this company, to carry out the purpose for which it was created, did not need a single foot of land, except a strip for its track, one hundred feet in width.
    It is claimed by counsel for the defendant, that the power of acquiring title to lands, is an incident to every corporation.— We think this position incorrect. ' In the case of The State of Ohio v. The Granville Alexandrian Society, 11 Ohio Rep. 12, the Court say, the rule for construing acts of incorporation, is, “ to consider corporations as having such powers ás are spe- £ cifically granted by the act of incorporation, or as are neces- £ sary for carrying into effect the powers expressly granted, and £ as not having any other.”

      ' The 'power tó deal in.real éstate' generally,' by purchasing and selling the same,'is expressly prohibited to this corporation, use of.-the words “'and no further,” in the 3d Section of .their chárter. What else could the-Legislature have intended by the use-of’.'this' knguagé, 'than to prohibit this corporation from' dealing,, in lairds generally,-as in, the , cáse of the lands" in. controversy':1
    •' Again,: IThis power was taken a^Vay. from-this, corporation, “impliedlyby.the purposes for which it was created.' .
    : That this'corporation ha'd- not the power, by its original charter,-to acquire the title to the land’ in controversy, is-evident, from the fact, that an.- amendatory act- was .passed, March 23, 1-S4p; (Ohio Lawsfvol. xxxviii,'-page, 210,)'-expressly conferring upon this co'nipan.y the power to -purchase and sell lands. Why was this amendátóry. act passed, if .they had 'this power by their- original .charter?' ‘ ‘ ■ -■

    The language made- use.of in this amendatory act is" such,that we may. infer that it-Was intended to ,givp it a retroactive effect, and in this way .legalize the procéedings of this -company under their original charter; so .far as 'their speculation in land was .concerned. But that it cannot -have' such a-'-,retroactive effect, is settled by 'the case of Good X. Zercher, .12 Ohio Rep. 364. ' '. ■ '■ ■ ■ '

      Búcldand, Hays fy Lane, for Defendant.
    Both'parties make title under John Overmyer..
    In 1839 John Ove.rm.yer sold and conveyed to the Ohio-Railroad Company,'for, a-consideration fully paid. In 1842 the Ohio Railroad Company conveyed to Cyrus Williams, in payment óf a debt'. • ' • .
    •In 1845 John Ov.ermyer sold and conveyed to Samuel Over-my.er, lor the nominal consideration of $-100'. This conveyance assumes that 'the former conveyance is void'.',- To maintain .this 'position, the plaintiff must show — ’ ■ . . '

      .First: 'That the Ohio Railroad Company could not- • land for this purpose;- and ■/' • •' V v, • ■" hbld
    '■Second’:'.. That á conveyance .of-'land to'.á. corporation, whi'cbithe.'charter does- not' authorize it to-.hold, passes 'nothing.;!-. '
    The'3d .section'’of. the,-charter. (Ohio,- if. '-Laws, ROk-'i^xiy, 319) renders the'company, “'capable- jin daw. of • purchasing,
    * holding,- selling,.-, leasing! ap'd'conveying .CstatesRreaV’'a-nd.:personal, Or mixed, so far Us .the' sanie shalRbé necessary' for.-the purpo'ses.Rereafter.men.tiohed-; and no!further,”'1.. -..' f' R -
    " By' the 12th section, the corporation máy .enter-,' '-use. and' ex-' cavate any lands which' rpay .be'wanted for--thc.'site of'the-road, or fof any'otherpurpbse necessary and useful for; the', construe-: ti.on and repairs,-&o, &c.•' .- ’ 1
    By-the I3’th section, .the company may agree with'the owners •of the land',- which máy be wante.d for' the -construction, and repairs of the road, for the purchase; „&c. . -. •' -
    The road- is built up.on'piles., The land'.is, a quitter section, in the black swamp adjoining the road, but .far from town, and valuable for- timber only. ■ The deposition of Willsorq á part Of the bill'of- exceptions, sho.ws the timber was'necessary to construct, and was ■ constantly wanted to .repair;' that the - most convenient and economical mode to obtain -timber for these purposes,- was to purchase land; that this land was eminently subservient to this purpose, 'and that'it- was acquired by the, company with no other view, although afterwards, in the derangement of the company’s affairs, it Was sold to pay its debtsi I'f this purchase had been made upon!- speculation, or to furnish a-basis of credit, or with any other slippery design, we would, not try to Upheld' it. .But when the timber upon it was really needed, and when ¿his.mbde of obtaining it was not only the most convenient and economical, but precisely the mode which a prudent man- of business would take to get it, we-.hold .the purchase of the land','.and the. payment.'of a'fair price, to the owners’ satisfaction, is not only justified by the charter, but ' a far more -commendable and- honest course than the'harsh and forced'appropriation, from an unwilling donor,'under the right -of eminent domain.

      2. Whatever may be held, as to the capacity of the corpora^on f° the land, this “ mousing ” plaintiff will be disapas well as the (honest ?) grantor, who sells it a second time, after receiving full payment; for the law does not enable a vender to a corporation to resume his estate, and thus take from the company the ability to pay its debts, and from the grantees the property they have honestly paid for. It is a principle well established, that lands liable to forfeiture, from the want of capacity in a corporation to hold, are not forfeited without office found, or some equivalent judicial action; and upon the interposition of the Court in such cases, by the operation of the Ohio statutes, (vol. xl, 67, sec. 14,) the property is applied to its debts, or to other legitimate objects. A few quotations will set this point at rest.
    It was decided by the Supreme Court of Pennsylvania, that a bank might purchase, absolutely, and not for debts, lands in a distant county, which they did not occupy, although they, or the third person, to whom they might convey, would hold them by a title defeasible by the Commonwealth, and the Commonwealth alone, as in the cases with title by aliens. Leasure v. Hilly as, 7 Serg. and Itawle, 319; Angel and Ames, 92.
    The Court of Appeals in Virginia decided that, though purchasing the land in question, the banks violated their ¿barters, and they might for that cause be dissolved, by a proceeding at the suit of the Commonwealth, yet that any conveyance made before dissolution, would pass an indissoluble title to the purchaser. 3 Rand. 136.
    If the plaintiffs are a duly incorporated body, with authority to contract and take mortgages, and if they pass the exact line of their power, it would rather belong to the government of Pennsylvania to exact a forfeiture of their charter, than for this Court, in this collateral way, to decide a question of misuse, and set aside a just and bona fide contract. Per Kent, 4 Johns. Chan. Rep. 373.
    This doctrine has been examined and adopted by the Supreme Court at Washington, in the case of Runyan v. Lessee

      of Carter et al., 14 Peters, 131. They say: “ The right of a ‘ corporation, in this respect, is like an alien, who has the £ power to take, but not to hold lands. And although the land £ thus held by an alien may be subject to forfeiture, after office £ found, yet, until some act is done by the government, accord- £ ing to its own laws,- to vest the estate in itself, it remains with £ the alien, who may convey it to a purchaser. But he can £ convey no estate, which is not defeasible by the Common- ‘ wealth. This principle has received the sanction of this Court, £ in Fairfax v. Hunter, whore it is said to be incontrovertibly £ settled, by the fullest authority, that the title acquired by an £ alien, by purchase, is not divested until office found.” They proceed to say, that doctrine clearly establishes the right of the lessees of plaintiff to hold the premises in question, until some act shall be done by the Commonwealth of Pennsylvania, according to its laws, to divest that right, and vest the estate in itself. The legal estate is, accordingly, in the lessee of the plaintiff, and the defendant cannot set up'any right of forfeiture, which the State of Pennsylvania can alone assert.
   Birchard, J.

From the bill of exceptions, the determination of this question will dispose of the three assignments of error. Did the deed of John Overmyer, executed in 1839 to the Ohio Railroad Company, divest him of title to the land described in the deed ? The plaintiff in error assumes that it did not, for the alledged reason, that the corporation had no power to receive the title. At common law, corporations had the capacity to purchase and alien lands unless restrained by statute or their charters. 2 Kent’s Com. 227, and cases there cited.

Owing to the lawish manner in which corporations are granted in modern times, a safer rule has obtained. The better and true doctrine which now is generally recognized, is, that corporations have such powers only as are specifically granted by the act of incorporation, or as are necessary to carry into effect the powers expressly, granted. 2 Cranch’s Rep. 127; 15 Johns. Rep. 358; 5 Conn. Rep. 560; 12 Ohio Rep. 12.

The purchase in this case was made, as is shown by the proof, for the express purpose of securing the right of way, and the timber growing on the land, which was needed in constructing the track of the road, and was actually so used. The superintendent, states that, after several ineffectual attempts to procure timber for the making of the road by purchase, he found it necessary to resort to the purchase of lands in the vicinity of the road to supply the materials for making the superstructure; and, in accordance with that view, the company made the purchase of the land in question.

■ We look, then, to the charter of this company (O. L. vol. xxiv, 320) in order to determine whether the deed of 1839 is void. The 3d section confers the power of “ purchasing, hold- £ ing, selling, leasing, and conveying estates, real, personal and £ mixed, so far as the same shall bo necessary for the purposes £ hereinafter mentioned, and no further;” ££ and they shall have, £ enjoy and exercise all the powers, rights and privileges, which £ corporate bodies may lawfully do, for the purposes mentioned £ in this act.” The purposes referred to are declared, in the subsequent sections of the act, among other things, the building of a railroad not exceeding one hundred feet in width.

The ,12th section gives the right ££to enter, use and excavate £ any lands which may be wanted for the site of the road, or for £ any other purpose necessary and useful for the construction £ and repair of said road and its works.”

Section 13 contains a paragraph which reads thus: ££ That £ the president and directors of said company, or a majority of them, or any person authorized by them, or a majority of them, ■ £ may agree with the owner or owners of any land, earth, tim- £ her, stone or other materials, or any improvements which may be wanted for the construction or repairs of said road, or any £ of their works, for the purchase, use or occupation of the £ same.”

In view of these grants of power, it would seem that the purchase in question was expressly authorized by the charter. Timber was needed for the construction of the road, and power was intended to be granted so ample, that it might be procured at all events. The first, and preferred mode of procuring it, was by purchase, upon mutual agreement with the owner; and it is evident from the whole scope of the charter, that the Legislature preferred that the company should make the necessary acquisitions of property, by purchase, to a resort to the other means conferred upon them, to wit, the exercise of the delegated right of eminent domain. The company did just what a prudent man would have done under like circumstances, and the charter justified them, because it was the intention of the Legislature (and which intent is to be gathered from the act of incorporation) to authorize purchases of all necessaries at fair prices, and in the mode most economical, least likely to give cause of offence, and least prejudicial to the rights of others.

Judgment Affirmed.


author: Wood, C. J.

text:
    George Arndt vs. Christian J. Arndt.
    A judgment rendered in tlie Court of Common Pleas of Pennsylvania, when the service is upon land only, and the defendant never within that State, is not prima facie evidence of debt in Ohio. • *
    Such judgment binds the property seized, but beyond this, is a nullity.
    The same faith, credit and effect will be given here to a judgment pronounced in Pennsylvania that it has by law or usage there.
    This Action is in Debt, reserved in the County of Fairfield.
    ■ The action is founded on a judgment of the Court of Common Pleas for Adams county, in the Commonwealth of Pennsylvania. The record of this judgment shows the service was made by the levy of an attachment on the interest of the defendant in a certain tract'of land in said Adams county.

      In Bank.
    Dec Term, 1846
    To' the declaration in this suit, on this record from Pennsylvania,. the.defendant has plead specially in bar of the action, he was never served with process; that he did not appear in the suit, neither by himself or his attorney, and that he was never within the jurisdiction of the State of Pennsylvania.
    The plaintiff has replied to this plea, that the defendant was brought before the Court by an attachment served on his land in Pennsylvania; and to this replication the defendant has filed a general demurrer,

      J. iB. Hart and II H. Hunter, for Plaintiff.
    The only question is as to the effect in the State of Pennsylvania of a judgment rendered in that State in a suit commenced by foreign attachment.
    The record of which proferí is made in the declaration, shows service of the writ by an attachment of all the interest of the defendant in a certain tract of land on the 3d day of October, 1836 ;• and that judgment was rendered on motion, April 25, 1837, for real debt, $432.60, and interest from 15th September, 1836.
    After the manner of Pennsylvania records, which ordinarily, I believe, only shows the beginning and conclusion of things, it does not appear whether the defendant appeared, or whether judgment was rendered by default.
    We assume that it was by default, that being the most probable.
    It being a personal action for the recovery of a debt, and not a proceeding in rem, and the Court having competent jurisdiction, we claim that the effect of the judgment is general, and.concludes the party so that he cannot controvert it or aver against it, unless by statute of Pennsylvania the effect of the judgment shall be limited.
    The form of the process by which the .subject matter is brought before the Court, or the manner in which it is to be served, whether by seizure of property, or personally, we think can make no difference, provided it be such as, according to the law of the State, is prescribed to give jurisdiction to the Court to pronounce upon the evidence as to the amount of plaintiff’s derna’nd.
    Every State or sovereignty has the right and power to prescribe in what manner causes shall be brought before its judicial tribunals to be adjudged. Under the Constitution and laws of the United States, and the judicial determinations, especially of the Supreme Court of the United States, the effect of a judgment in every other State is made the same as in the State in which it is rendered. So far as the present case is concerned, this question, we understand, is conceded.
    The State of Pennsylvania has provided that suits may be brought by foreign attachment, to be served by the seizure of property; and their statute expressly provides that judgment may be rendered therein, not merely to subject the property seized to a sale, but generally. The effect of such judgment is not declared by statute; nor is the effect of a judgment, where personal service of process is had, so declared. The effect is therefore a legal consequence as much in the one case as the'other.
    An abridgment of the laws of Pennsylvania on the subject of foreign attachment, will be found in Purden’s Digest, 5th edition, page 436, &c.
    By the 1st section, it is in substance provided: “ That it ‘ shall be lawful for the plaintiff, at the third term after execu- ‘ tion of the writ, if he shall have filed his. declaration, to take ‘judgment for default of appearance, unless the attachment ‘ before that time be dissolved.”
    Section 2d provides “that after judgment, as aforesaid, the ‘ plaintiff may have a writ of scire facias against the garnishee.”
    Section 9th provides “ that after judgment, and before exe- ‘ cution executed, the plaintiff shall give security that if the ‘ defendant will, within a year and a day, disprove, or avoid the ‘ debt recovered, or discharge the same with costs, the plaintiff ‘ shall restore the goods or effects, or value thereof, attached,” &c.

      Section 12th provides “that the defendant may appear and ‘ ma'te defence before judgment, and if judgment be rendered c for the plaintiff, it shall' have the same force and effect as if ■c commenced by summons.
    These are all the provisions appearing to relate to the question under consideration with which we have met.
    The record shows a scire facias and judgment therein, August 28, 1837, against the garnishee.
    The record also shows that a fieri' facias issued against the garnishee, and that the lands attached were condemned November 24, 1837.
    According to section 9, above cited, the condemnation under the execution could not take place without bond being given by the plaintiff. It must therefore be presumed, in favor of the proceeding, that bond was given. If given, the defendant, according to the further provisions of the same section, had a ye-¡r and a day, which would expire on the 26th November, 1838, to disprove or avoid the debt. If not disproved or avoided within that time, the fair construction is, we think, that the judgment, as. well as the right of the plaintiff .to. retain the proceeds of the property, becomes absolute.
    If it were disproved or avoided, the fact, if relied upon by the defendant, should be pleaded. The provisions of the 12th section arc quite distinct in declaring the effect of the judgment when the defendant appears, provided the effect, of a judgment in a case commenced by summons be known. But we submit that it does not follow that the judgment by default is destitute of effect, because the Legislature has seen proper, to declare the effect where there is an appearance. We think the effect of the judgment, whore the defendant appears,would have been the'same if .its effect had not been declared, that it is declared to be, by the provision referred to. And by the same proeess of reasoning, the effect of the judgment by default flows as a necessary consequence from the judgment, without its being declared. It is a general judgment, ascertaining the amount of the debt by a court of competent jurisdiction, in a cause duly'brought before it, according to the laws of the'Slate, for adjudication. ' . •

      II. Stanbery, (Attorney General,) for Defendant.
    This case is supposed to depend on the force and effect of this judgment in Pennsylvania. If it is simply a proceeding in rem, no one pretends it has any validity here — but if the judgment operates beyond the property attached, so as to establish a debt in personam, it is elaiméd on the other side it must have a like effect here. ■'
    It is understood that this Court recognize such a distinction, and incline to give extra territorial effect to judgments in foreign attachment, wholly éxparte,' if the courts of the State, where they are rendered, give effect to them beyond the property, attached.
    In this particular our Court is directly at variance with all the most enlightened State courts. There is a surprising uniformity of decision, to the effect that a judgment wholly ex parte, without service upon, or appearance by the defendant, is totally void out of the State in which it is rendered as against persons not citizens of that State. Bissell v. Briggs, 9 Mass. Rep. 462; Thurber v. Blackburn, 1 N. H. Rep. 242; Whittier v. Wendell, 7 N. Ii. Rep. 257 ; Rangely v. Webster, 11 N. H. Rep. 299; Hull v. Williams, 6 Pickering, 232; Starbuck v. Murray, 5 Wend. 148'; Roberts v. Caldwell, 5-Dana Rep. 512; Holt v. Alloway, 2 Blackford Rep. 108.
    The whole difficulty upon this question arose out of the loose language of Judge Story, in Mills v. Duryee — ' construing faith and credit, as meaning force and effect. All judgments are in that case declared to have the same force in a sister State which they have in the State where the judgment was first rendered. But the absurdity and gross injustice of giving conclusive effect to an ex parte judgment, soon became apparent, and it was found necessary to qualify that decision.

      It was supposed the case of Bennett v. Morley, 10 Ohio ' Rep. 100, had" fixed the rule in Ohio, in conformity with the current of decisions in the other States. The Court in that case, after noticing the cases of Hall v. Williams, and Star-buck v. Murray, say : “ These decisions necessarily followed ‘ after the qualification which had been given to the case of ‘ Mills v. Duryee, by the very court in which it was heard. ‘ They seemed to be indispensable in order to give import and ‘ meaning to the distinction between those proceedings where (the party has had a day in court, and those where he had ‘ not.”
    It is now understood, that our Court does not adhere to what was said in that case, but proceeds upon the distinction already stated. The consequence necessarily is, that our citizens are at the mercy of the wildest legislation of any State in the Union. If Texas enacts a law that a judgment in her courts, without process or pleadings or any service on the defendant, shall be conclusive there, it is to be taken as conclusive in Ohio simply because it must have the same force and effect in Ohio that it has in Texas. Any one of our citizens, who has never been within a thousand miles of Texas, may be made a beggar by that doctrine.
    Fortunately for the defendant in this case, the distinction saves him. This judgment in foreign attachment, as the defendant never appeared to make a defence in the case, is strictly a proceeding in rem, and has no force or effect beyond the property attached, even in Pennsylvania. See the Statute of Pennsylvania as to Foreign Attachment, in Purden’s Digest, 5th edition, p. 436, &c.
    It is strangely contended by the counsel for the plaintiff, against the clear language of this statute, that it is a judgment in personam, and has force and effect, as such, beyond the property attached. There is not a syllable in the whole law which can be tortured into that construction. Without going over the different sections, it is sufficient to refer to the 12th, which provides “ that the defendant may appear and make de- £ fence before judgment, and if judgment be rendered for the ‘ plaintiff, it shall have the same force and effect as if com£menced by summons.”
    Now it happens in the case at bar, that the defendant did not appear and make defence, so that instead of becoming a proceeding in personam, it ended, as it began, in rem.
    I have looked very carefully into the Pennsylvania Reports, but can find nothing to countenance the idea that the judgment in attachment, where the defendant does not appear, is any thing but a proceeding in rem.
    In MeClenachan v. McCarty, 1 Dali. 403, counsel, speaking of this proceeding, say: “ In this action the plaintiff acquires ‘ no general lien by his judgment as in other actions, but can £ only issue execution against the property attached.” Shvppen, President, says, in the same case, that their attachment act of 1705 is modeled after the attachment upon the custom of London ; that it is strictly an ex parte proceeding until the defendant appears.
    In Flannagan v. Wetherill, 5 Wharton, 286, the Court say: “ Such judgment in foreign attachment, it is true, is not con- £ elusive to every purpose, but as to the property attached and £ ultimately made liable, it is conclusive as a proceeding in rem.”
    In Hawley v. Lumberman’s Bank, 10 Watts, 232, it is said: ££ The nature of an attachment, as used in this State, seems to £ be a process not directly issued against the defendant himself £ or property in his possession, but to seize and secure property ‘ of defendant in the hands of some other person.”
    It would seem, from the Statute of Pennsylvania, and from what is said in the foregoing cases, that the foreign attachment in that State, where the defendant does not appear, has no effect, even there, beyond the property attached.
    In Felton v. Plainer, 13 Ohio Rep. 218, this Court treated a judgment in attachment, rendered in Michigan, as of no validity in Ohio, there being no service on the defendant.
    In the same case, the Court reaffirm the doctrine, that if such a judgment had a" further effect in personam in Michigan, it would have equal effect in Ohio.

      Although this case does -not require thé defendant'to combat that doctrine, I trust the'Court will-, not; consider. :a few' observaupon it as out of place. ■ ■■
    I have not -found an -authority- in -any other; State -that will support it. . Every where,- even among.thte strongest advocates for the full faith and credit clause of the constitution', it is admitted, that the court rendering the judgment must h'avte jurisdiction before any effect can be given to such judgment in a new jurisdiction or in another State.
    ‘ Surely no one has gone further than Mr. Justice Story in giving force to foreign judgments, and yet in Picquet y. Swan,

    5. M.asori, 42,'he uses this language,: “ I have already intimated .‘ that no sovereignty can extend its process beyond its territorial ‘limits, to subject either,persons or property to its judicial de- ‘ cisions. Every, exertion of authority beyond this limit is a- ‘ nullity,'án.d incapable of binding-.,persons-.or property in any ‘ other tribunals. Jf a State were to'pass'an act declaring that ■‘ upon personal, notice of a -suit brought against a foreigner, resi- ‘ dent jn .a foreign- country, proceedings might’ be had against ‘.hipi, .and-.,a judgment obtained in invitu-m, for áught I know, ‘ the local tribunals might give a binding efficacy' to -such judg- ‘ inents; but elsewhere, they would be utterly void, as an usurpation of general sovereignty over independent nations and ‘ their subjects.” Again he says: '■
    “ Where a party is within a territory, .lie.- may justly be subjected-to its process and bound ■ personally by the judgment ‘ pronounced, on such' process, against him.- Where he is not ‘ within such territory,, and is not personally subject to- its laws, ‘.if, .on account of .his supposed .or actual property being within ‘ the territory, process by the local -laws hiay, by attachment, ‘go to compel--his appearance, and for-'his default to appear, judgment may be pronounced'against him, such a judgment ‘ must, upon general principles, -be deemed only to bind him to ‘the extent of such-.property, and cannot have.-tile effect of a ‘.conclusive judgment in personam, for the: plain reason that, ‘ except so. far .as the property: is."concerned, it ■ is a judgment- £ coram non judice. If the party chooses to appear and take £ upon himself the defence of the suit, that might vary the case, ‘ for he may submit to the local jurisdiction and waive his £ sonal immunity.”
    The learned judge, among other authorities for this doctrine, refers particularly to the case of Bissell v. Briggs, 9 Mass.
    Rep. 462, which was upon a judgment of a sister State, and held a nullity in Massachusetts for want of personal service.
    I must further refer this Court to Judge Cowen’s note, (4 Phil. Ev. 907,) in which all the authorities are collected, and the doctrine is summed up in these words:
    ££ A person, however, though a citizen of another State or ‘ country, when he comes within the territory of a particular £ sovereignty, contracts a sort of temporary allegiance to it, and { may justly be .subjected to its process Snd bound personally' £ by the judgment of its courts. And whether jurisdiction be ‘founded upon the person being. within its territory, or the £property being there, the judgment will be deemed valid so £ far as that jurisdiction could legitimately extend, but no. further. £ Thus, a very common course in many of the United States £ and in many other countries, is to proceéd against non-residents £ by an arrest or attachment of their property within' the terri- £ tory. Judgment obtained on process of this kind, will gen- £ erally bind the property so arrested or attached. But such £ judgment will not be regarded by neighboring States, or other £ nations, as evidence of indebtedness or as operative in any £ measure in personam, and for this obvious reason, viz: that, £ except so far as the property attached is concerned, there is ‘ and can be no jurisdiction — no power of adjudication.”
    Now, in the case at bar, an attempt is made to give effect to this Pennsylvania judgment in personam, in Ohio. It is admitted in the pleadings, that no service was made on the .defendant; that he did not appear in person or by attorney, and that, in fact, he never was within the territorial limits of Pennsylvania. The courts of that State never had jurisdiction of his person, and under such circumstances, they render a judgment against him and give it effect there as a judgment in personam, yet, in the language of Judge Story, elsewhere it would he utterly void.

   Wood, C. J.

By the pleadings in this case, it is admitted, that the -only service in the action, upon the record of which this suit is brought, was by seizing the lands of the defendant. It is not claimed that any personal notice was ever given to’the defendant. Is the record of a judgment obtained by means of such service in Pennsylvania, prima facie evidence of debt in Ohio ? If so, the plea is no answer to the declaration : the replication is sufficient, and the demurrer should be overruled. But, if not, the defendant is entitled to judgment, on this issue of law. To acquire jurisdiction over the person of an individual, it is necessary that he should be, or, at least, have been within the territorial limits of the sovereignty, or no judgment can be rendered against him which will bind him personally. This is not only a principle of common law, but such service must be made that a defendant may have his day in court. “ Strike, but hear me,” is the spirit of the rule, and if any exception intervene, it is the creature of positive legislative provision. Property within the territorial limits of a sovereignty, will, in like manner, confer jurisdiction over it, and where service is made upon it, the judgment rendered will bind it, but beyond this, it is of no validity, and cannot be enforced against the debtor — certainly not, in the absence of statutory provision. In Pelton v. Platner, 13 Ohio Rep. 218, this Court has said, that execution cannot be issued by a justice of the peace and levied on other property than that attached, when the suit is commenced in that way, nor can execution issue ón such judgment against the person, nor is such judgment prima facie evidence of debt — and the reason is, that when the judgment has converted the property, it is functus officio for every other purpose. Idem. — But where service is made on property only, and judgment is rendered in a court of record, the statute of Ohio provides for the issuing of execution against the defendant for any balance due after exhausting the property. If, however, the debtor had never been within the territorial limits of Ohio, before the rendition of such judgment, it is worthy of the most serious consideration whether, by the force of this statute, execution could be issued against him personally. The decision oí this question is, however, not necessarily involved in this case.

If this record of the Pennsylvania judgment is prima facie evidence of debt in this State, it is because it is so in Pennsylvania. The law is well settled, at this day, that the judgments of our sister States must have the same faith, credit, validity, force and effect in every other State that they have, by law or usage, in the State where they are rendered, and that whatever pleas would be good to a suit thereon in such State, and none others, could be pleaded in any court in the United States, (3 Wheat. Rep. 234 ; 13 Peter’s Rep. 324,) though execution can only issue in the State wherein the judgment is pronounced; 13 Peter’s Rep. 225. The Supreme Court of Pennsylvania have, however, recently held, that a judgment in foreign attachment, affecting to bind not only the property attached, but the persons of defendants not citizens of the State, nor within its precincts at the time, is to be treated as a nullity by a court in another State, which is called on to enforce it by action^ though it would bind the persons of the defendants in the courts and by the laws of the State in which it was rendered; Law Reporter for Feb. 1846, 471. In Ohio, as the law now stands, though such a judgment would bé held, prima facie, valid, the counsel for the plaintiff have totally failed to show us that the judgment in question binds any thing in Pennsylvania beyond the property attached.. Of the statutes of other States we do. not take judicial notice. They must be proved, and if any such effect as is claimed is given to the judgment in question, where it was pronounced, the counsel for the plaintiff have entirely failed to show it.

Nothing of the kind is evidenced by the reports of that State that we are able to find, and, in our view, it would be a most unwarrantable assumption to presume it.

The statute of Pennsylvania provides only, in such case of attachment, that the defendant may appear and make defence, an(j jn caS(3) that is, when he appears, submits to the jurisdiction and has his day in court, the -judgment rendered shall have the same effect as if the suit was commenced by summons. Purden’s Dig. 437. It is silent as to the effect when the defendent has no notice of the attachment; until after judgment rendered,- and before which period the defendant had not been within the jurisdiction of the court. , ■

There appears to us, therefore, no áuthority for saying that this judgment is of any validity where pronounced, beyond the conversion of the property seized, and ought not to be considered as prima facie evidence of debt in this State;

Demurrer sustained.


text:
    Jeffrey Bliss, an infant, by his next friend, vs. Stephen R. Hosmer.
    A canal contractor may justify the entry upon land for the purpose of procuring necessary materials for liis work, under the order of the engineer in their employ, without proving specific directions -of the Board of Public Works.
    The act of the engineer in their employ in such cases, is the act of the Board.
    The law confers authority to take materials when necessary, from places most convenient and least expensive to the State and the contractor.
    A specification in the contract that materials are to be procured at the cost of the contractor, does not limit the authority conferred by law upon the Board of Public Works to enter upon private lands and appropriate materials when necessary.
    This is a Writ of Error to the Supremo Court of Morgan County.
    The original action was trespass quarfc clausum fregit, brought to recover the value of timber cut upon the land of the plaintiff, and used in constructing a dam and lock at' McConnclsville, on section seven of the Muskingum Improvement.

      In Bank.
    Dec. Term,1846.
    The defendant plead, first, that he was in the employment and service of the Board of Public Works : which Board com- , mandad them to go into the wood-lands adjacent to said section seven, (being the dam and lock at McConnelsville,) and cut the necessary timber; that plaintiff’s land was wood-land adjacent to said section seven; and they entered it and took timber, &c., doing no unnecessary damage.
    The second plea differs from the first in omitting the allegation that, the land was adjacent to the section, and also in stating that the command of the Board of Public Works to the defendant as their " agent, was communicated through S. R, Curtis, an engineer and agent of the B.oard.
    Replication to these two pleas, son injuria.
    The issue was tried at McConnelsville in November, 1843, and á verdict taken for defendant upon the second plea.
    A bill of exceptions shows that upon the trial of this cause, the defendant proved that the, defendant and said Harlow Chapin and Joseph Sharp, in the year 1836, entered into a written . contract with the Board of Public Works of the State of Ohio, for and on behalf of the said State by William Wall, acting commissioner, the material parts óf which contract are — that said Hosmer, Chapin and Sharp agreed to construct section number seven of the the Muskingum Improvement, consisting of a dam of timber, a lock and a canal; and which contract, after stating the prices to be paid to said Hosmer, Chapin and Sharp, contained this clause —
    “ It is understood that the foregoing prices are to cover the cost or value of the materials used.”
    The "defendant also proved that,- at and before said contract was entered into, a printed pamphlet entitled, “ Notice to bidders,” was delivered by the said William Wall to said Hosmer, one clause of which was as follows":
    “ All materials must be furnished by the contractor at his ‘ own expense, but when the owners of such materials refuse ' to deliver, or let them be taken, except at exorbitant prices, * the acting commissioner, or engineer, will give an order to the £ contractor to'take .the necessary materials for the construction £ of the canal, the' contractors being liable to pay the damage £ assessed under the provision of the canal law, if any should. £ be assessed.” ' '
    The defendant also proved that large quantities of timber were necessary for the convenience of the construction of said works; and he further proved that on the 2d day of May, 1837, and for some years afterwards, Samuel R. Curtis was the resident engineer upon said portion of the public works of the State, and that he delivered to defendant on said 2d day of May, 1837, a paper, of which the following is a copy : .
    “ McConneesville, 2d May, 1837.
    44 Messrs. Hosmer, Chwpin Sharp:

    44 Gents : In behalf of the Board of Public Works of this State, you are 4 hereby authorized to go on to the wood-lands in the vieinity of this place and 4 select, cut and furnish yourselves with the requisite quality and size of tim4 ber for the construction of locks, dams, and other wooden structures as may 4 be required in tho publicámprovement of slackwater navigation of the JVlus4 kingum river. Provided, however, that nothing herein contained shall re-4 lease you from any liability to damages which may be assessed by the State 4 in. consequence of damages to private property, or to authorize you to cut any 4 timber which may not be necessary and proper for the public works at this ‘place, section number seven. SAML. R. CURTIS, Res’t JGng’r.”
    The admission of this paper in evidence was objected to by plaintiffs No proof, other than is above set forth, was given of the defendent being in tho employment or service of the Board of Public Works ; nor any other proof than is above set forth, that ihe Board of Public Works, any member thereof, or any agent thereof, authorized or commanded the plaintiff’s land to be entered, or his timber taken by tho defendant.
    Evidence was given by the plaintiff, tending to show that tho plaintiff’s land was two or two and a half miles from said section seven, and that the necessary timber could have been obtained from land lying nearer to said section, and the plaintiff’s counsel claimed in argument that such fact had been fully established.
    It was in evidence that the defendant owned timber-lands adjoining the plaintiff’s land, from which he had taken timber for section seven, and proof tending to show that he had exhausted his own timber before he resorted to the timber of the plaintiff. There was proof on the part of the defendant ing to show that the quantity and quality necessary for section seven could not be obtained,.so conveniently, nearer than the plaintiff’s and defendant’s lands; and claimed this fact to be established before the jury.
    The Court charged the jury that the material parts of the defendant’s second plea, were : Was the defendant a contractor on section seven ; was he authorized by the resident engineer to enter upon the plaintiff’s land and take the timber which he had taken; and did he, in exercising that authority, do any unnecessary damage ? That it was not necessary to be shown that any application had been made to the owner of the land for timber, &c., or that the owner had refused, or had asked an exorbitant price therefor. That the ' defendant was not obliged to resort -to timber which was nearer the section, but would be equally justified in obtaining it within five miles or one mile — that he might exercise a reasonable discretion as to the placo where to obtain it.
    To the opinions of the Court in admitting the said-paper in evidence, and in the charge to the jury, the plaintiff excepts, &c.
    C. B. Goddard, for Plaintiff.
    On behalf of the plaintiff in error, I claim that this judgment (must be reversed, for the following reasons:
    First: The evidence shows, that the only authority ever given by the Board of Public Works to the defendant, to enter upon the plaintiff’s land, required a previous application to the plaintiff, and a refusal, or a demand of an exorbitant price.
    The plea alledges that the defendant was the agent of the Board of Public Works, and was commanded by the Board, through Mr. Curtis, the engineer, to enter upon the plaintiff’s land and take his timber, &c. The proof wholly fails to sustain this allegation. The Board of Public Works did agree to S*ve SUC^ authority,1 but upon one contingency, which was, when the contractor could not obtain materials except at exorbitant prices. This is the only case in which it is necessary for the Board to interfere for the benefit of the contractor.
    The case of Bloodgood v. The Mohawk and Hudson Railroad Company, 18 Wend. Rep. 9, is much in point: The Legislature of New York authorized the Railroad Company to enter upon land for their road ; but in case of a disagreement as to price, the governor was to appoint three commissioners to determine the damages, &c. Held by the Court, that the company could enter upon no land without the consent of the owner, until the damages were assessed and paid.
    Second: The paper signed by Mr. Curtis was inadmissible in evidence, or, if admissible, could not confer the power assumed for it by the learned Judge who tried the cause,— inasmuch as no evidence was given that the Board, or any member thereof, authorized the order, and because it is general in its terms, specifying no land, but leaving the whole of this tremendous discretionary power, which the Legislature has devolved upon the members of the Board of Public Works, or Canal Commissioners, to be exercised by a contractor as capriciously as he pleases.
    The statute under which the defendant justifies, is found in Swan’s Collated Statutes, chap. 93, sec. 5. It authorizes the “Canal Commissioners” — whose duties at the time of the alledged trespass were performed by the Board of Public Works —“ and each of them, by themselves, and by any and every c superintendent, agent and engineer employed by them, to ‘ enter upon,” &c. It is admitted that the proof established the fact that Mr. Curtis was an engineer. He belonged to the class who might be empowered by the Board to enter land, &c. But there was no proof this power ever had been conferred upon him, and if it had been, he could not confer it upon another.

      I know of no case which has sanctioned the delegation of this power. The leading New York cases which establish the constitutionality of their canal laws-. — from which.ours are borrowed— are Jerome v. Ross, 7 Johns. Chan. Rep. 315, and Rogers v. Bradshaw, 20 Johns. Rep. 735. In both these, the acts complained of were done by the State officers; and in the last named case, Chancellor Kent, in delivering the unanimous opinion of the Court of Errors, lays stress upon the fact, that the chief engineer approved of the road as staked out, and that it was staked out by his direction. Pie says also, page 739, “ the commissioners were made the judges as to what lands were necessary for the prosecution of the improvements.”— And again: “ Here was, then, the exercise of a sound discretion in the execution of the trust.” Again, page 740: “ What £ was proper to be done, and what damages were unavoidable, £ were questions left entirely to the judgment of the commis- ‘ sioners.”
    Third: The charge of the Court assumes, that proof that the defendant was a contractor established the second plea, which had carefully omitted to style him a contractor, and called him the agent of the Board.
    The truth is, there was no proof that the defendant was an agent of the Board of Public Works, except so far as proof that he was a contractor made him so. Nor was there any proof that the Board commanded the defendant to enter the plaintiff’s land, except as that proof may be found in the letter of Mr. Curtis, authorizing him to enter upon any body’s land. And it is worthy of remark, that the original plea in this case, in which the defendant justified, on the ground that he was a ££ contractor,” was adjudged bad on demurrer.

      C. C. Covey, for Defendant.
    The reasoning of the counsel for the plaintiff, fails to convince nie that he is correct in his first position, which is, that private property cannot be appropriated to public use, before application to the plaintiff, and a refusal, or demand of an exorbitant price. Equally at fault is the counsel in his reference to the case from IS Wendall, for this reason: The Mohawk and Hudson ’ Railroad Company is a private corporation ; the road is made for individual gain, and is not a public highway. True, the Legislature of New York authorized the company to enter upon land for the construction of the road, but in the same clausé provided, that in case of a disagreement as to price the governor should appoint three commissioners, &c.
    The Court there held that, as between these private individuals, ■ before the property of one could be converted to the use and benefit of another, that other should receive pay in full. The Court in that case very wisely refused to recognize the doctrine, that the owner of private property should depend for a repayment of its value upon the solvency of a private corporation, where that property ■ has been seized for individual benefit.
    This doctrine has been fully sustained by this Court, in Bates v. Cooper, 5 Ohio Rep. 120. The Court in that case, remarking upon cases similar to that .cited from 18 Wendall, remark : “ Whatever construction we might feel constrained ‘ to put upon authority given to individuals to appropriate the ‘ property of others to their private advantage, we cannot be- ‘ lieve the cases to have any very material bearing on agents * and officers exclusively public, engaged in the construction of a great public improvement, for the sole.benefit of the State.” In this same case also, of Bates v. Cooper, the doctrine of the learned counsel, that an application must be first made to the owner, a refusal made, or an exorbitant price demanded before the Board can exorcise its authority, of entering upon lands and for the purpose of taking materials, is expressly controverted in the following language^ page 118: “But we are not advised 1 that the Court has ever held, that compensation must be actu- ‘ ally assessed, and paid over to the owner, before a public c work can progress, whether he desires it or not. The Constic tulion must receive a construction that will leave it possessed ‘ of practical utility. The public interest is to- be promoted, ‘ while private rights are secured. But can it be for a moment ‘ supposed, that a road or canal of general importance to £ community, should be interrupted or suspended, at the capri1 cious will of an' individual ?”
    I contend further, that the engineer, Mr. Curtis, was clothed with ample power to enter upon lands to procure the necessary materials; that he could rightfully delegate this power to tlié defendant, as he did, and that the defendant was authorized to exercise a sound discretion in making his selection of the land, from which he would procure the materials.
    Admitting that the agent, in exercising this discretion, erred; that the materials might, by possibility, have beén procured nearer his work; yet, if it appears that there was no error in intention, no disposition manifested to exercise the authoriiy given him by the State, to the injury of one, and in a spirit of favoritism towards another, the Court'will not hold him responsible as a trespasser.
    In the case of Lyon v. Jerome, 15 Wend. 569, the Court say: “ It is stated that the stone could not have been procured £ so conveniently any where else; but this fact is not noticed ‘ by the Chief Justice, in delivering his opinion.' No such £ qualifications of the powers given to the commissioners and £their agents, is found in the act; and although it is highly £ proper that it should enter into their consideration, in deter- £ mining upon the appropriation of the private property of indi- ‘ vidu'als, an error in judgment in respect to it ought not to £ subject them -to be- treated as trespassers.” They further add: '“It may be added that it appears in this case also, that the £ stone from the quarry of the plaintiff was the most convenient £ for building the locks. I conclude then, that, though the au- £ thority to enter upon the plaintiff’s land and use his quarry, £ must be derived from the Canal Commissioners, no express £ and specific directions need be given.” The statute of New York, then under consideration by Chief Justice Nelson, was in almost the identical words of the statute of Ohio. What, then, can be plainer than this position, that the agents of .the commissioners may, without any express authority from them, eater upon lands, -and use the timber and other materials necessary in the construction of the public works ?
    In Rogers and Magee v. Bradshaw, 20 John. 735, the action was trespass, brought against contractors, for entering upon land and cutting timber to make a road, iii place of one which had been appropriated for a canal. The plaintiffs in error had entered into a contract with Samuel Young, one of the Canal Commissioners, for making this road, and, in doing so, cut the .timber necessary for its coiist'ruction. ' The Chancellor delivered the unanimous opinion of the' Court of Errors, in favor of the plaintiffs in error, and they hold the entering of the contractor to be, in fact, the entering of the commissioners. See also, in this case, Wheelock v. Young and Pratts, 4 Wend. 647; Calking v.. Baldwin, Ibid. 667. In the last' case the Judge, in delivering the opinion of the Court, says: “ The Legislature have prescribed the mode in which damages ‘ for the plaintiffs shall be ascertained, and in that mode only ‘ can they properly seek compensation.”
    Unless, then, there is something in this case to distinguish it from cases of a similar nature, - so often decided by the courts of New York and Ohio; unless, in fact, the agents of the State have, in the exercise of the power given them by the Slate, been influenced by improper motives, and caused unnecessary damage to result to the plaintiff, the decision of the Court below must be sustained.
   Birchard, J.

■ Two errors are assigned:—

First: The- admission of the order of the engineer; second : The instructions given to the jury. Of these in their order.

It is objected to the order, that, before i.t issued, there should have been a previous application to the plaintiff .for leave to enter the land, and a refusal, or the demand-of an exorbitant price. In reply to this objection, it is sufficient to observe, that the law imposed no such limitation of power upon the Board of Public Works; and had Curtis, the engineer, been joined in this suit with these defendants,- as he well might have been, if they were trespassers, his justification would have depended" in no sense whatever upon any Such fact. Most certainly, whatever would have sustained him in entering the promises, would also sustain those who entered in virtue of his directions; they were but his agents and assistants in executing the work of the Muskingum Improvement. Much reliance is placed upon certain clauses in the contract, and .in the notice to bidders.— These provisions were inserted for the benefit of the contractors-, not' to embarrass them — to insure to them the means of securing the necessary materials, for the structure of their dam and locks, at reasonable prices. Hence the Board contracted, binding themselves, and giving to the defendants the right to compel them to exercise, in their behalf, the extraordinary powers conferred by statute, in case the stipulated contingency should-happen. The insertion of this .provision of the contract, was no limitation of the power conferred upon .the Board of Public Works, or the engineer, by the statute; that was still left to be exercised, or hot, at their discretion, under the responsibilities of their several stations, as duty and propriety might dictate. But the record shows that plaintiff was a minor — a person who could . not act — one with whom no contract could be made by these defendants. The fact was alledged in the plaintiff’s pleading, and needed no proof; and had it been material, was sufficient, so far as plaintiff’s land or timber was concerned, to have justified the order of Curtis under the clauses in the contract and notice. A minor could give no permission that would be obligatory upon him, not having the capacity to make an obligatory contract; and if that state of facts did not make a case that would justify the engineer in giving a proper-order, it is difficult to say what would.

The order, however, is said to be void because it is too general in its terms, &c.

I take it, that is not the true-test of its validity. The question is, was it broad enough to authorize the specific acts done under it, and were those acts authorized by law ? It may have been very improvident on the part of Curtis, the engineer,. to so general a direction; most certainly would it have sub-jected him to serious .personal responsibility, had that been done under it which the law would not sanction. If a man of ordinary prudence, he would not have given such, a general, permit without the most implicit confidence in the good faith and intelligence of the contractors. Whatever- may have been his motives, the true question was, not whether the direction was too general and improvident, but whether it was, in fact, given; and if so, was it ample and sufficiently-descriptive to authorize an entry upon the land of plaintiff? “You are here- by authorized to go on to the wood-lands, in the vicinity of c this place, and select, cut, and furnish yourselves with the requisite quality and size of timber, for .the construction of locks, dams and other wooden structures, as may be required,” &c. It is equivalent to— you may seek your materials from any wood-land about this place; go where you can find it of the requisite quality and size in this vicinity, and cut what is necessary. Surely this was ample; and the proof tended strongly to show that suitable timber, at reasonable prices, could not well be procured nearer than from plaintiff’s land. The object of the Legislature in granting the power to enter, seize, and make use of the necessary materials, is manifest. They were unwilling to subject the State to the hazard of having its great public works impeded at the caprice of every or any individual, and equally unwilling to permit the cupidity of any person to interpose any obstacle whatever to their completion, at a fair price. It was never contemplated that the officers and agents of the State should be restricted, in their right to appropriate materials, to such as were nearest to the place of use ; such a restriction would have doubled the expense of the State. On the contrary, the plain intent was to confer ample power to take these materials wherever they could be procured at the least expense, in order that the public works might be completed at a fair cost. This, we must presume, was the understanding of the Board of Public Works, and of the contractors, at the time the contract in question was entered into. Consequently the stipulation of the Board to authorize seizures, must be understood in reference to this view of their powers, and the objects of the law. With what propriety, then, could the Board refuse to permit the contractors to take materials from the places least expensive to them ? Admitting that ample graves were to be found in the village of McConnelsville, were the contractors bound to take it thence, and pay the enhanced value which the peculiar locality gave tq it, when, by going a short distance from town, better materials, at half the price, could be procured ? Must they strip the reserved'groves in the village, when, by going a few miles, better material was worth but little more than the expense of cutting, and to take it would aid the owner in clearing the forest, instead of injuring him ? Surely no prudent person would so conduct his private affairs. It is as certain, that the State néver designed their agents to conduct the public business of canal making less providently than a fair man of business would manage his objects of individual enterprise. This question is not a new one in Ohio. For more than twenty years the provision of the statute has been in force and acted upon in Ohio. Resident engineers in some parts of the State, during all that time, under the direction of the Canal Commissioners and Board of Public Works, have been permitted to direct the taking of ma*terial, from such places as were least expensive to the contractor and State, without specific instructions from the Canal Commissioners ; and their right to do so, whether in writing or by parol, though often questioned, has ever been sustained. In disposing of the second assignment of error, this subject' will be necessarily again remarked upon.

We come, then, to the objection taken to the charge of the Court.

The law under which this defence was made, is the 8th section of the act of 1825, (Swan’s Stat. 747 and 748,) which provides thus: “ That it shall and may be lawful for the said ‘ Canal Commissioners, and each of them, by themselves, and f ^ any an<^ every superintendent, agent and engineer employed by them, to enter upon, and take possession of,< and use all and singular any lands, waters, streams and materials, £ necessary for the prosecution of the improvements,” &c., ££ doing no unnecessary damage.” A subsequent statute conferred this same power of the Canal Commissioners upon the Board of Public Works. That part of the act which I have quoted, is copied in the very words of the law of New York, of 1817. Under this law, the Courts of New York have held, that an engineer, employed by the Canal Commissioners, to whom was given the superintendence in constructing a portion of the canal, was authorized to enter upon the lands of individuals, and take materials for the furtherance of the work, without any express orders or direction of the commissioners. Lyon v. Jerome, 15 Wend. 569. Wheelock v. Young and Platts, 4 Wend. 647.

The reasoning of the Court in those cases, is applicable to this. As is said there, so say we here, that a construction o.f the law that would require every act done by the resident engineer and superintendent to be especially authorized by the Board, or one of its members, could not have been within the contemplation of the Legislature: it would have embarrassed the work, and was not practicable. True, the act of entering lands to take materials necessary for the work,"by statute, is to be done by the Board, or one of its members; but how to be done ? The law says, by one of their number in person, ££ and £ by any and every superintendent, agent and engineer em- £ ployed by them.” When done'by an engineer duly employed by them, the act is the act of the Board, and the engineer or agent must justify it as such. The fault of the pleas first filed in this case, consisted in a neglect to a.ver an entry under the authority of the Board. The amended plea, upon which the verdict was taken, is liable to no such objection.

We now come to the instruction complained of. Take it altogether, and we are still satisfied with it. The jury were told, in substance, to inquire whether defendants were contractors; whether they were authorized by the resident en-J _ ‘ . j ■ gineer to enter on the plaintiff’s land and take the which had been taken, and whether, in so doing, they did no unnecessary damage; and if so, they should find them justified of the alledged trespass. Had Curtis, the engineer, been joined with these defendants, and justified under the Board of Public Works, and the contractors justified, as they have, this case would not be distinguishable from the case cited from 4 Wendell. Young, in that case, was the engineer, and justified as such; the others acted under his directions, without any specific directions of the Canal Commissioners of New York, and it was held they were not liable in trespass. This case, then, and the justification, is like that, with this difference : here the engineer is not sued, and there both he and the contractors were joined. The article there taken was stone; and it is to be gathered from Young’s case, as well as the case in 15 Wendell, that, whether the' materials could have been had more conveniently some where else, was a matter of no momenta— This brings us to the last clause in the charge of the Court.

The objection docs not seem to be much relied upon by counsel, yet it is worthy of a remark. The object and intention of the Legislature has already been stated, in disposing of the main objections of plaintiff, to the ruling of the Court below. The engineer’s direction was, to go upon the wood-lands in the vicinity. Counsel had urged to the jury, that the form of expression required the defendant to cut the necessary timber from the lands nearest to the lock and dam, that is, nearest to the town. The substance of the charge was, that Curtis meant no such thing; that he intended the contractors might do what the State was authorized to do, go to such land in the.’ neighborhood as was most convenient — such as would subject the State to the least sum in damages, and consequently subject the contractors to the least loss. We believe still, that the charge of the Court placed the correct construction upon the letter of the resident engineer; because the words -will bear .that construction, and because, as á faithful agent of the State, bound to deal fairly with the-contractors, under, the lavv and in virtue o.f the contract; he was under obligation to1 permit the contractors to go where-they '.could 'procure materials to .the best advantage. And he was bound so to act as to secure to the contractors the benefits-;of their own-skill and' capacity-as- business men. .He had'no right, to" lessen the profits of their contract', -by forcing' 'them,'to procure timber where, :if' could 'only be had at- an extr.a '.price. - Such .a; course .would 'have, violated the spirit of the;.contract, and been highly injurious .to.the contractors. It would have accomplished . what was-.not lighter what was .of no advantage :to the State, Of any -one.elser— what -the.. law .never-contemplated, and what, both parties to-.the'contract intended should, not happen. . . ' . ' ' - . '

Judgment Affirmed.. '■