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Jacobs v. Commissioners of Hamilton County.

regard to which no authorities are cited. I suppose, however, it is clear that if the receiver had actually proceeded under the original decree to reduce into his possession the property or assets, the complainants could not call on the defendants for a disclosure by means of a supplemental bill. But there is nothing before the court showing that either the master or receiver beretofore appointed, have taken any steps in the execution of their appointments touching the matters now in controversy. Indeed, it does not appear that the receiver has accepted the trust, or that he intends doing so. The mere fact that persons were named as master and receiver in the original decree, in the absence of any showing that they have done anything in the performance of their duties, is no bar to the present procedure.

Upon the whole, I can see no sufficient reason for sustaining the demurrer to the bill, and it is accordingly overruled.

(CIRCUIT COURT.)

ENOCH JACOBS v. THE BOARD OF COMMISSIONERS OF HAMILTON

COUNTY.

The commissioners of a county are not responsible, in their official capacity,

for an infringement of a patent right adopted by a contractor for the construction of a county jail.

Lee f Fisher, for plaintiff.

W. S. Scarborough, for defendants.

OPINION OF THE COURT:

This is an action on the case against the board of commissioners of Hamilton county for an alleged infringement of the plaintiff''s exclusive right to certain improvements

Jacobs v. Commissioners of Hamilton County.

in the construction of jails, secured to him by a patent granted by the United States. The declaration is in the usual form, averring that the defendants “unlawfully and unjustly, against the will of said plaintiff, and without his leave or license,” made certain prisons in imitation of the plaintiff's invention, and in violation of his exclusive right under his patent, for which he claims a large sum in damages. To this declaration the defendants have filed a general demurrer, which presents the question now before the court.

There can be no controversy as to the nature of the claim against these defendants as asserted in the declaration. It is a claim against the commissioners of Hamilton county, as a body corporate under the laws of Obio, for an alleged act of malfeasance committed by them in their corporate character. It is equally clear that if damages are recovered for the wrongful act charged, they can only be paid out of a fund raised or to be raised by taxation on the property of the people of the county.

It is not denied by the counsel for defendants that corporations created by law, enjoying special franchises conferred for the benefit of its members, as well as for the public good, are liable for acts of misfeasance, malfeasance, or nonfeasance, if injuries result to others from such acts. But it is insisted, that under the laws of Ohio, the board of commissioners of a county is not such a corporation, and is not liable in an action sounding in tort.

It is clear this question must be decided by a reference to the statutes of Ohio creating a board of commissioners in every county of the State, and defining their powers and duties. Unless the legislative power of the State, either by express enactment or by clear implication, has imposed a liability on the people of a county to respond to an injured party for damages sustained by the wrongful acts of the commissioners, it does not exist and can not be enforced. Now, it is undoubtedly true that the laws of Ohio have imposed it as a duty on the commissioners of every county

Jacobs v. Commissioners of Hamilton County.

to provide a court- house and jail, and such other buildings as are needful for the due administration of justice or other specified purposes. But we look in vain for any provision in those laws authorizing the commissioners to do a wrongful act, and pledging the property or the funds of the county to respond in damages for such act.

But the question involved in this case has been settled by the Supreme Court of Ohio, and the decision of that court is authoritative on this court. It involves a construction of the statutes of Ohio relating to the powers and duties of county commissioners, and by the long-settled rule of the Supreme Court of the United States, ecrupulously followed by the lower courts of the Union, such a decision, even if against the views and opinions of those courts, will constitute a rule of decision for them.

The case of the Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109, is decisive of the case before this court. In that case, Mighels brought suit against the commissioners, alleging, in substance, that in the progress of the construction of the county court-house a certain opening or hole in the stairway, leading from the first to the second story of the building, was negligently suffered to remain without any guard or protection, and that the plaintiff, in pursuit of his lawful business, fell into it, thereby sustaining serious bodily injuries, for which he claimed compensation.

In that case the court, after an extended review of the legislation of the State as to the powers and duties of the board of county commissioners, were brought unanimously to the conclusion that they were not liable to the suit of the plaintiff, so far as he claimed damages from the county for the alleged wrongful acts of the commissioners. The court held, that although the statute conferred on the commissioners the power of suing and being sued, which is a capacity or attribute of a corporation, the board was only a quasi corporation; and that its power to sue and its liability to suit must be controlled and limited

Jacobs v. Commissioners of Hamilton County.

by the terms of the statute prescribing in what cases such power and liability existed. And as the power to sue and liability to suit were limited to cases of contract, the statute could not by implication be extended to the case of a tort. The court-say: “It is worthy of notice that this statutory enumeration of the matters in respect to which the board of commissioners may sue, is confined to matters of contract. As to all actions, or subject-matter of actions sounding in tort, the statute is silent." And in the closing paragraph of the opinion of the court on the point in question, the court say: “We conclude, therefore, whether we look solely to the language of our statute, and apply to it those principles of construction which seem to be indicated by the narrow range of the objects and purposes of the county organization, or are governed by the light to be derived from analogous cases elsewhere determined; that if this action can be maintained at all, a foundation for it must be found elsewhere than in the provisions of our statute.”

The case referred to must be viewed as decisive of the question raised on this demurrer. It can make no difference in the principle of the two cases, that in the case before the Supreme Court of Ohio the tort charged, and for which it was sought to make the board of county commissioners liable in their official capacity, was an act of nonfeasance, while in this it is an act of misfeasance. The principle involved is precisely analogous, whether the cause of action alleged is the wrongful omission to perform a duty or a positive act of misfeasance. In either case, there is no law by wbich the people of a county are responsible to the injured party for an injury sustained by the tort. The right to recover in either case must rest on an express statutory provision. There can be no pretense of any such right in virtue of the common law. This proposition is beyond all doubt in an action for an infringement of a patent right granted under the laws of the United States. The patent itself, with all the privileges which it confers, is the creature of the statute; and it is clear there can be

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Jacobs v. Commissioners of Hamilton County.

no remedy for a violation of the patent, except as it is conferred by the statute.

I am not able to see the force of the argument urged by the plaintiff's counsel, that he may be without a remedy for his alleged wrong, unless this action can be sustained against the board of commissioners. It is urged that the grant to the plaintiff secures to him the exclusive right to make, use, and vend the patented improvement without any exception or reservation. Hence, it is insisted, if any person or corporation can violate it with impunity, the patentee suffers a wrong without the possibility of redress. To this it may be replied, that the tax-payers of the county being the parties•alone interested, and virtually the defendants in the action, have bad no agency in the commission of the alleged wrong. They have neither violated the plaintiff's rights, nor have they authorized the commissioners, as their agents, to do so. There would be no justice, therefore, in holding that their funds, contributed in the form of taxes, should be applied to the payment of damages for an act not authorized by them, and which has no sanction in the laws of the State.

But the plaintiff is not without remedy if there has been an infringement of the plaintiff's patent as alleged by him. The fact alleged in the declaration is, that the injury to the plaintiff consisted in the unlawful use by the defendants of certain improvements in the construction of iron prisons embraced in the patent. Now, the court will take notice that, by the statute of Ohio, the county commissioners can authorize the erection of buildings for the use of the county only by contract. As a necessity, therefore, there must be a contractor who obligates himself to do the work according to a proposed plan or specification for a fixed compensation. There can be no question that if the contractor, in the fulfillment of his obligation, violates the patent right of another, he is answerable for the infringement. He can not defend himself against the claim of the patentee by asserting that he committed the wrong under a contract with

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