Commissioners of Trumbull Co. v. Hutchins. . THE COMMISSIONERS OF TRUMBULL COUNTY V. JOHN HUTCHINS. The county commissioners are, by law, required to furnish buildings and everything necessary to be used and employed in the public administration of justice, and are chargeable with the purchase of a press for the seal of the court. The secretary of state is required, by law, to furnish all seals for the several courts, as well in case of loss as in the first instance. Assumpsit is the proper form of action against the commissioners, by the clerk, for the price of the press. THIS is a writ of error to the court of common pleas of Trumbull county. The suit below was an action of assumpsit, brought by John Hutchins, clerk of the court of common pleas of the county of Trumbull, against the commissioners of said county, to recover the price of a press and seal purchased by said Hutchins for the use of his office. It was submitted to the court upon an agreed state of facts, which were, in substance, as follows: *The plaintiff's demand was for money, paid by him, for [369 a press and seal for the use of his office, as clerk of the court of common pleas for Trumbull county, the old one being broken and unfit for use. The county commissioners had not been consulted, nor had they authorized the purchase, or been informed of the fact, until after the purchase was made. After the purchase the account was presented to them, and disallowed, before the bring ing of this suit. The defendant moved for a nonsuit, upon the ground that the commissioners of the county neither authorized the purchase nor assented to it, either before or after it was made, and for the additional reason, that if the plaintiff could recover at all, this was not the form of action, but the plaintiff should have appealed from the decision of the county commissioners in rejecting the account. The court below refused such nonsuit, but rendered judgment in favor of the plaintiff for the amount claimed as the price of the press and seal. To reverse this decision, this writ of error is brought. CROWELL & ABELL, for plaintiff in error, made the following points: 1. The present action can, in no event, be maintained: 1. Be Commissioners of Trumbull Co. v. Hutchins. cause the press and seal are not proper subjects of county expenditure; they should be furnished by the secretary of state. 2. The action is barred by the decision of the commissioners, rejecting the account on which it is brought, from which no appeal was taken, as the law provides. 3. There is no promise, either express or implied, on the part of the commissioners, to pay the amount, the purchase having been made without their knowledge or consent, and against their will, and though they "may sue and be sued," it will be seen that it is only upon contracts to which they are parties, or have given their assent, as officers of the county, whose duties are prescribed, and whose powers are lim. ited by law. 2. The only appropriate remedy, if the commissioners were wrong in rejecting the account, is by mandamus, to compel them 370] to do their duty and allow it. In this proceeding, the *whole question could be determined; as well the power of the clerk to bind the commissioners by contract, made without their knowledge or consent, as that of the commissioners, by refusing to pay what they deemed an unlawful demand, to protect the county treasury from unauthorized expenditures. 3. Of all the officers of the county, the commissioners alone are empowered to levy taxes on the people, and for this reason, among others, it seems to be the policy of the law, and it is certainly a wise policy, to limit and confine the power of incurring expenses for "county purposes" to them solely, who alone can levy taxes to pay them. They cited, in support of their positions, the following authorities: Swan's Stat. 206, 207, 402, 509, 740-742, 849, 850; Commissioners of Brown County v. Butt, 1 Ohio, 446; 5 Ohio, 490, 542; Smith v. Commissioners of Portage County, 9 Ohio, 27, 28. JOHN HUTCHINS, for defendant in error, contra: READ, J. This record raises the question simply whether the county commissioners are, in law, bound to furnish the clerk with the seal of the court of common pleas of the county, and a press necessary to its use, and if so, whether an action of assumpsit will lie, for the price of their purchase, by the clerk. If it be the legal duty of the commissioners to furnish the press Commissioners of Trumbull Co. v. Hutchins. and seal, the price paid for their purchase by the clerk, is properly recoverable in an action of assumpsit. A press, of some description, is necessary to the use of the seal of the court. The seal is the legal authentication of the process and the records of the court, and it is the duty of the clerk to affix it. Thus, under our law, a seal is incident to the administration of justice, and the press a necessary incident to the seal. Both are therefore connected with the administration of justice, as means or instruments necessary for the performance of absolute legal requirements. The administration of justice is a [371 public charge, and so is everything necessary to its administration. It is the legal duty of the county commissioners to furnish all things coupled with the administration of justice within the limits. of their own county. It is their duty to furnish suitable and convenient buildings for holding court, at the expense of the county; and fire-proof offices for the use of the clerk, and for the preservation of the records and papers connected with the business of the court. In fitting up their court rooms and offices, it is the duty of the commissioners to fit them up as court rooms and clerks' offices, and this requires that they should be supplied with, and contain those things which are necessary to enable the officers for whose public use they are fitted up, to perform their official duties. But the court in this case conceive that a proper construction of the words of the statute, which declares that "the clerk shall receive a reasonable allowance for blank books and stationery," includes the press necessary to the use of the seal, and requires the county commissioners either to furnish or pay for it out of the county funds. The word "stationery" embraces all things necessarily employed by the clerk for the purpose of writing and authenticating every species of writing which the law requires the clerk to write and authenticate; especially all such things as are necessarily connected with the office for such purpose. The press is an article of this description. Upon these grounds, so far as the press alluded to is involved, the clerk would be entitled to recover. But as to the seal of the court of common pleas, the county commis sioners are not bound to furnish it. The statute provides that the secretary of state shall furnish the seal of the several courts to their respective clerks. The words of the statute are "that the secretary of state shall procure, at the expense of the state, for each organized county, Jeffries v. Ankeny et al. where the same has not been done, a seal for the Supreme Court and court of common pleas, of the same description and device with those heretofore furnished to the clerks of the respective counties." 372] *It has been supposed by some, that the secretary of state is only bound to furnish the first seal to newly organized counties, and not to supply counties which have had seals with new seals, in the place of such as may have been lost, worn out, or otherwise rendered unfit for use. Such is said to have been the construction put upon this act by the practice of the several secretaries of state. Such construction the court conceive to be erroneous, and we hold that the secretary of state is required by the act to furnish seals for the courts of all counties which have no seal, as well to counties that have had seals, which have been lost, worn out, or otherwise rendered useless, as to newly organized counties that have never had a seal. The statute intends to secure similarity or likeness of seal of the same courts. To furnish such devolves upon the secretary of state. If called upon, it is his duty to furnish seals to all counties which have none. The intention of the legislature would be as liable to be defeated if the secretary of state should not replace seals, as in a neglect to furnish them in the first instance. The seal of the courts was not, therefore, a county charge. The court below erred in rendering judgment for the price of the seal purchased by the clerk. Judgment reversed. PARKER JEFFRIES V. JOHN ANKENY ET AL. A person, the offspring of a white man and a half-breed Indian woman, is a lawful voter. An action on the case lies against township trustees, for refusing a lawful vote, without proof of express malice. THIS is an action on the case from Greene county. The suit was brought by the plaintiff against the trustees of Zenia township, for refusing his vote. The case was reserved to determine the law arising upon a special verdict. Jeffries v. Ankeny et al. The jury find the defendants presiding as judges of a [373 legal election, and that the plaintiff tendered his vote, and offered to prove his qualifications, but that the defendants rejected his vote, because, they said, they were of opinion the plaintiff was "a person of color." That the plaintiff was of the Indian race, without more than one-fourth Indian blood. If, upon the facts, the court should hold the plaintiff entitled to recover, they assess his damages at six cents. J. S. PRESCOTT, for plaintiff in error: In this case I shall trouble the court, on the part of the plaintiff, with remarks only as to one point of the case. That is, does the action lie against trustees, for refusing the vote of a citizen legally authorized to vote? The only case I shall cite the court, is Ashby v. White, 2 Ld. Raym. 938, 950. In that case the action is sustained, and, as far as can be gathered from the report, without regard to the motives of the officers refusing the vote, and, therefore, probably from the necessity of the case, for otherwise the party would be without remedy. I believe it has been the practice of the Supreme Court of this state to support similar actions against school directors. I. would ask the court to consider the following points: 1. The importance of the right, and that every citizen, lawfully entitled, should be permitted to enjoy that right. 2. Unless this action can be sustained, the right is at the complete mercy of the trustees, as it must be always easy for them. to give an excuse for the rejection of any vote opposed to them politically or otherwise. 3. There is no other remedy. ELLSBERRY and HOWARD, for defendant: By the constitution of the State of Ohio, the right of suffrage is conferred upon white persons, and them alone. Constitution of Ohio, art. 4, sec. 1. *It is a principle at law, fully sustained by authority, that [374 no action can be maintained against a judge or justice of the peace, acting judicially, in a matter within the scope of his jurisdiction, although he may decide erroneously in the particular case. 1 Salk. 306; Ld. Raym. 466; 5 Term, 186; 3 M. & S. 411; 6 Bing. 85; 5 Johns. 282; 9 Johns. 395; 10 Mass 356; nor can an action be maintained against a juryman, or the attorney-general. 1 Term, 513, 514, 535. Nor against a superior mili |