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plan projected by the defendants, there was a certain stairway from the first to the second floor, opposite to the main entrance into the building, which persons in their egress from the said court-room by the usual passages into the street must necessarily pass, and under said stairway was a large opening into the cellar, which the defendants wrongfully and unjustly permitted to remain open, unprotected and uncovered, and wrongfully and negligently omitted in any manner to guard the same, so as to prevent persons passing along said passage from falling into such opening, and wholly omitted to light the same at night, by reason whereof, and for want of such light and protection over said opening, the plaintiff, being such witness required to be in such building, and necessarily detained there in obedience to the order of said criminal court of Hamilton county, till after nightfall on the twelfth day of December, 1854, in passing along said passages on his way from the court-room to the street, necessarily and unavoidably slipped and fell into said opening, and thereby the thigh and two ribs of the plaintiff were fractured and broken, and the plaintiff became sick, lame and disordered, and so remained for a long space of time, during all which time he suffered great pain, and was prevented from attending to and transacting his necessary and lawful business, and was obliged to expend and did expend a large sum of money in endeavoring to get healed of said wound, sickness or disorder. The plaintiff, therefore, demands judgment against the defendants for $10,000 damages.

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To this petition the defendants below demurred on the ground that it did not state facts sufficient to constitute a cause of action. On hearing, the demurrer was overruled and leave was taken to answer. An answer was filed, admitting a part of the material facts alleged in the petition, and denying the remainder. The case was tried by a jury who found the issues in favor of the plaintiff below, and assessed his damages at $7,750. After motions for a new trial, and in arrest of judgment were made, heard and overruled, judgment was entered on the verdict. No bill of exceptions was taken to any ruling of the court below on the trial.

The case having been reviewed on error by the superior court at general term, and the judgment there affirmed, a petition in error is filed here to reverse that judgment of affirmance.

All the errors assigned or assignable on the record present but the single question which was originally made by the demurrer to the petition, i. e., does the petition state facts sufficient to constitute a cause of action? If it does, there is no error apparent on this record; if it does not, the judgment is erroneous and must be reversed.

It will be noticed that this is an action brought by an individual plaintiff against the commissioners of a county in their official or quasi corporate capacity, to recover damages resulting from the negligence and misconduct of those officers. No claim is made against those officers as individuals, but the recovery is sought against the county, and if this judgment can be maintained, it must in some way be met and paid by the people of Hamilton county. And thus we

are presented with the question, is a county, or, in other words, the people of a county, liable in an action sounding in tort, for the personal misconduct or negligence of the county commissioners while in the performance of their official functions?

If a county be thus liable, that liability must be derived either expressly or by necessary implication from the provisions of some statute, or must rest on the principles of the common law.

[After holding there was no statutory liability proceeds:]

2. Is the action maintainable on the principles of the common law? In entering on this inquiry, it is but justice to ourselves to say, that, assisted by the researches of diligent counsel, we have given it an unusual share of labor and attention; and this not only because of the importance of the question itself, but for the reason that the conclusion to which our minds have been compelled is in conflict with a case (Commissioners of Brown County v. Butt, 2 Ohio Rep. 348) decided by judges for whose judgment we entertain that degree of respect which renders even involuntary and irresistible dissent from their conclusions reluctant and self-distrustful.

For the purpose of maintaining this action, an effort has been made in argument to assimilate counties to natural persons and municipal and other corporations proper. Now it is conceded, that if the negligence, and consequent injury to the plaintiff below had been the act of a natural person in the construction of a private building, to which the plaintiff below had been invited, the party guilty of the negligence would properly be liable in damages. So, also, it now seems to be well settled that, had the defendants below been the agents of a municipal or other corporation proper, and had the plaintiff below been injured through like negligence and under like circumstances, the corporation might be held to answer for the injury. And why? Because where there is a wrong there ought to be a remedy; persons, whether natural or artificial, are bound so to use their own property and conduct their own affairs as not to injure others; and where an act is done to the injury of another by a natural person in the pursuit of his own interests, or, through its agents, by an artificial person, a corporation proper, which is called into existence, either at the direct solicitation or by the free consent of the persons composing it, for the promotion of their own local and private advantage and convenience, and which can work only through agents, such natural or artificial person is, on every principle of justice and enlightened reason, bound to rectify the consequence of his own misfeasance. And it is freely admitted that if counties are in all material respects like municipal corporations proper, and may be fairly classed with them, then this action ought to be maintained. But how is the fact? This question is vital, and on its solution the case must depend.

As before remarked, municipal corporations proper are called into existence, either at the direct solicitation or by the free consent of the people who compose them.

Counties are local subdivisions of a state created by the sovereign power of the state, of its own sovereign will, without the particular

solicitation, consent or concurrent action of the people who inhabit them. The former organization is asked for, or at least assented to by the people it embraces; the latter is super-imposed by a sovereign and paramount authority.

A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the state at large, for the purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy. Ward v. County of Hartford, 12 Conn. 406; Boalt v. Commissioners of Williams County, 18 Ohio Rep. 16; C. W. & Z. Railroad v. Commissioners of Clinton County, i Ohio St. Rep. 89. The idea that the board of county commissioners is the agent of the -county or of its people is prominently advanced and pressed on our attention. That board is, in some sort, the agent of the county, it is true; inasmuch as it alone is authorized to sue and be sued in respect to contracts growing out of the county organization. There is an administrative necessity that some name should be employed as the representative of the public interests involved in such suits; and that of the board of county commissioners has, by law, been designated for that purpose; but the name of the county auditor, or the name of the county itself, had the legislature chosen so to prescribe, would have answered the same purpose quite as well; and, in fact, we think, has no special weight or significance.

But, it is said, the members of the board of county commissioners are chosen by the electors of the county, and hence the board is to be regarded as the agents of the county, for whose torts in the performance of artificial duties the county ought to be responsible. True, the people of the county elect the board of county commissioners; but they also elect the sheriff and treasurer of the county. Are the people of the county, therefore, responsible for the malfeasance in office of the sheriff, or for the official defalcations of the county treasurer? This will not be pretended. And yet, if this case is to rest on the principles governing the relation of principal and agent, wherein is the distinction between the case at bar and the case supposed? We confess our inability to discover any such distinction. In the case of municipal corporations proper, the electors are, mediately or immediately, invested with very ample control over their agents, not only as to what shall be done, but how it shall be done, and by whom it shall be done; they may exact such guarantees as they deem proper for their own indemnity, and may prescribe by-laws for their government. As between the commissioners and the electors of a county all this is wanting. All his powers and duties are prescribed by the supreme legislature; and the electors can exercise no control over him whatso

ever, except such as springs from the bare fact of election; and to this extent they can control a sheriff or treasurer as well as a commissioner. Chancellor Kent (1 Com. 572-3) says, that "a great proportion of the rules and maxims which constitute the code of the common law, grew into use by the application of the dictates of natural justice and cultivated reason to particular cases;" and that "the best evidence" of what that law is, "is to be found in the decisions of courts of justice, contained in books of reports, and in the treatises and digests of learned men.

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Now, on what principles of "natural justice," or of "cultivated reason, ," aside from positive statute, the people of a county should be held responsible for the personal or official misconduct of a county commissioner, we are wholly unable to perceive.

But how stands the case upon authority, "by the decision of courts of justice, and the treatises of learned men?"

The county organization, substantially similar in all its general features and functions, has existed in England from the earliest times, and in all the states of this Union, with perhaps one or two exceptions, more nominal than real, from the period of their settlement; yet the researches of diligent counsel have failed to furnish a single case where an action has been maintained against a county in a case like the one before us, except that of the Commissioners of Brown County v. Butt, before cited, and which was recognized as authoritative in Richardson v. Spencer, 6 Ohio Rep. 13, but, apparently without any particular examination of the principles on which it was based, or of the authorities bearing upon them.

It is said that the court below sustained the action in the case before us, on the authority of Commissioners of Brown County v. Butt; and we concur with the court below in the opinion that if that case was properly decided this action must be maintained. We have looked in vain for any substantial distinction between them. In that case, the debtor, having been surrendered by his appearance bail, and committed to the custody of Butt, who was sheriff of Brown county, escaped by reason of there being no jail in Brown county, and the sheriff not being by law at liberty to imprison the debtor elsewhere than in the jail of the county. The creditor having recovered against him, as sheriff, for the escape, Butt brought his action on the case against the board of commissioners of the county to recover the damages he had thus sustained by reason of its neglect of duty to provide a jail. The court, Burnet, J., dissenting, held the action to be well brought, on the ground that the commissioners were the agents and representatives of the county. In that opinion, for the reason before indicated, as well as on the authorities about to be noticed, we find ourselves unable to concur. We can not but think that county commissioners are not agents or representatives of the county in any such sense or manner as to render the people of the county justly answerable for their neglect. The reported opinion of the majority of the court in that case may furnish very abundant reason why the utter neglect of county commissioners to furnish a jail, and, the sheriff himself being in no

fault, a plea of these facts ought to be held a good bar to an action for an escape, and the creditor turned over to an action against the commissioners personally, or why, if such plea be held bad, the sheriff might maintain his action against the county commissioners in their individual capacity, for the personal injury resulting to him from their neglect and as to these alternatives, the question not being directly before us, we express no opinion-but it affords to our minds no satisfactory reason why the people of a county should be held pecuniarily responsible for the delinquencies of officers over whose acts that people have no supervision or control whatsoever. And the case itself, as before remarked, stands alone. At the time it was made it was unsupported by any reported case; and, so far as we can ascertain, it remains still unsupported by any case outside of Ohio, while the cases on the other side are uniform and so numerous as to render a particular notice of all of them too tedious to be attempted.

The leading case on this subject seems to be that of Russell v. The Men of Devon, 2 T. R. 667, which was an action on the case against the men dwelling in the county of Devon, to recover satisfaction for an injury done to a wagon of the plaintiff in consequence of a bridge being out of repair, which ought to have been repaired by the county; to which two of the inhabitants, for themselves and the rest of the men dwelling in that county, appeared and demurred generally. On hearing, the court of king's bench unanimously sustained the demurrer; and this, apparently, on three grounds: (1) That there was no precedent for such an action. (2) By reason of the inconvenience resulting from the multiplicity of actions for contribution to which a recovery and levying of the judgment upon the inhabitants of the county would give rise; and, (3) That the county of Devon had no fund out of which satisfaction could be made. And this last reason, it seems to us, applies with great weight to the case in hand. It is true, counties in Ohio have a treasury, and in it various funds. But those funds are all raised for specific purposes; to those purposes they must be devoted; the commissioners are authorized to levy no tax, except for such purposes as are authorized by statute; and we have no statute authorizing the levy of a tax to satisfy such a judgment as this. And in Boalt v. Commissioners of Williams County, before cited, it was decided that a bill in chancery would not lie against a county to subject equities, and, in the opinion of the court in that case, it is assumed, arguendo, as indisputable, that county bridges, court-house, public offices, jail or poor-house, can not be sold on execution at law.

In Riddle v. The Proprietors of the Locks and Canals on Merrimack River, 7 Mass. Rep. 169,' Parsons, C. J., delivering the opinion of the court, clearly lays down the principle on which we proceed. He says: "We distinguish between proper aggregate corporations, and the inhabitants of any district who are by statute invested with particular powers without their consent. These are in the books sometimes called quasi corporations. Of this description are counties and hundreds in 'Supra, p. 47.

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