Montgomery v. The State. 107] *ROBERT MONTGOMERY V. THE STATE OF OHIO. It is competent for the court, on the hearing of a writ of error, to reverse in part, and to affirm in part, the sentence and judgment of a probate court in a criminal case. Bonsal v. Ohio, 11 Ohio, 72; Lougee v. The State, Ib. 68 An affidavit filed before a justice of the peace, charging a person with petit larceny, will authorize his arrest, an inquiry into the complaint, and his recognizance to the proper court, and confer jurisdiction on the latter, if it describe, substantially, the commission of the offense. The failure to insert in such affidavit the name of the owner of the property which is alleged to have been stolen, does not entitle the defendant to a reversal of the proceedings. The return of the transcript and recognizance by justices of the peace, and other officers authorized to take the same, to the probate judge of the county, was necessary to give that officer jurisdiction of offenses; and the record of his court, to be sufficient to sustain a conviction and judgment before him, must contain a transcript of proceedings before such justice, or other officer, in order to show that he properly acquired jurisdiction of the offense. Gates et al. v. The State of Ohio, 3 Ohio St. 293; Miller et al v. The State, Ib. 475; Aultfather v. The State, 4 Ohio St. 405; Robinson v The State, 6 Ohio St. 141. THIS is a writ of error to reverse the judgment of the district court of Richland county. The prosecuting attorney filed an information in the probate court charging Montgomery with stealing the property of the value of one dollar of Henry Deckison. Montgomery entered a plea of not guilty; but the jury found him guilty in manner and form as charged, and the court sentenced him to three days' imprisonment on bread and water, and ordered that he "make restitution to the person from whom the goods were stolen in twofold the value thereof." To reverse these proceedings in the probate court, Montgomery prosecuted a writ of error in the district court. The district court reversed the judgment of the probate court as to the order of restitution, and affirmed it in all other respects. 108] *Montgomery now seeks to reverse the judgment of the district court. It does not appear from the record of the proceedings in the probate court, that the charge upon which Montgomery was tried in that court had ever, before the case came there, been examined into, or Montgomery v. The State. made against him, before any justice of the peace or other examining officer. There is with the papers of the case what purports to be a transcript of proceedings against Montgomery before a justice of the peace; and this transcript is marked, "Filed October 25, 1854." It is not made a part of the record of the proceedings in the probate court, nor is it referred to by the probate judge, nor is there anything else to identify it as a part of the proceedings in the case. This transcript sets forth that on the 17th of October, 1854, Henry Deckison made oath that a petit larceny was committed at. the county of Richland, by the stealing of seven chickens, on or about the 14th of July, 1854, and that one Robert Montgomery was guilty of the fact. The plaintiff in error insists that the district court erred: 1. In reversing in part, and affirming in part, the judgment of the probate court. 2. In not reversing the entire judgment, on the ground that the probate court took original jurisdiction of the offense. McLaughlin & Stevens, for plaintiff in error. The Attorney-General, for the state. BOWEN, J. The plaintiff in error complains of the judgment of the district court in two particulars: 1. Because that the court reversed in part, and affirmed in part, the decision of the probate judge. This, it is well settled, may be done. 11 Ohio, 68. There was nothing erroneous in that order. 2. The plaintiff insists that it was error in the probate court to take original jurisdiction of the offense. This point has, likewise, *undergone judicial determination, and has been ruled ad- [109 versely to the state, and favorably to the plaintiff. Gates et al. v. The State, 3 Ohio St. 293; Miller v. The State, 2 Ib. 476; Aultfather v. The State, 4 Ohio St. 467. The record of the probate judge should show, upon the face of it, that the proceedings were instituted before the proper officer, who is empowered to recognize offenders, as provided by law. The transcript of the justice confers no aid to the record of the probate court. It is not attached to it, nor does it form any part of it. The judgment of the district court, in this particular, was erroneous. It improperly sustained the original jurisdiction of the probate judge over the offense. VOL VII-7 97 Comm'rs Hamilton Co. v. Mighels. The judgment is reversed, and cause remanded to the court of common pleas of Richland county. BARTLEY, C. J., and SWAN, BRINKERHOFF, and SCOTT, JJ., concurred. THE BOARD OF COMMISSIONERS OF HAMILTON COUNTY v. JESSE W. MIGHELS. The board of commissioners of a county are not liable, in their quasi corporate capacity, either by statute or at common law, to an action for damages for injury resulting to a private party by their negligence in the discharge of their official functions. The Commissioners of Brown County v. Butt, 2 Ohio, 348, overruled. In error to the Superior Court of Cincinnati. Ferguson & Long, for plaintiffs in error: The question to be determined in this case is, whether damages resulting from neglect by the commissioners of a county of a public duty, can be recovered out of the public moneys of the 110] *county, or whether, for such neglect, the commissioners are not alone individually responsible. I. As to the nature of the county organization. 1. The state is divided into counties for public purposes, and particularly for the more convenient administration of justice. They are political organizations, not corporations. They can not sue or be sued, or contract, and they have no common seal. Constitution, art. 2, sec. 30; Ib. art. 4, sec. 3; Ib. art. 8, sec. 6; Ib. arts. 10 and 11; C., W. & Z R. R. Co. v. Commissioners of Clinton county, 1 Ohio St. 87, 89, 95; Commissioners of Crawford v. Commissioners of Marion, 16 Ohio, 466; Ward v. County of Hartford, 12 Conn. 404; County of Schuyler v. County of Mercer, 4 Gilman, 20. 2. The public moneys of the county are chiefly raised by taxation, for certain specific purposes, and it is not lawful to use them for any other purpose. Damages, like those recovered in this case, are not within the purview of the statute. Constitution, art. 10. Comm'rs Hamilton Co. v. Mighels. sec. 7; Swan's Stat. 927, sec. 78; 937, sec. 112-115; Kemper v. McClelland, 19 Ohio, 308. 3. The power to determine on the amount to be raised, is given to the commissioners, the collection and custody of the funds to the county treasurer, who is to keep separate accounts of each, and the control of their disbursement to various officers, tribunals, and boards, as well as the board of commissioners. Swan's Stat. 63, sec. 11; 1009, sec. 5; Treasurer of Perry County v. Moeller, 11 Ohio, 428; Smith v. Commissioners of Portage County, 9 Ohio, 25; Ohio, ex rel. v. Auditor of Hamilton County, 19 Ohio, 116; Commissioners, of Clermont County v. Robb, 5 Ohio, 490; Board of Directors of Infirmary, Swan's Stat. 613, sec. 19; 614, sec. 24; 615, sec. 30; 617, sec. 40; Agricultural Societies, Swan's Stat. 37, 39. II. The board of commissioners of the county is a quasi corporation having certain limited powers conferred by statute, and can exercise none not expressly granted, or necessarily incident to those granted. They have no corporate fund, and no power to bind the county funds except by contract. Swan's Stat. 181, 758; 53 Ohio L. 153-155; Commissioners of Gallia County *v. Hol- [111 comb, 7 Ohio (pt. 1), 233; Potts v. Henderson, 2 Carter, 327; Colton v. Hanchett, 13 Ill. 6, 15. III. The duty of providing "some suitable place for holding the courts of the county "-for the breach of which, resulting in a special injury to the defendant in error, this action was broughtis a public duty specifically imposed by the statute on the commissioners, in the performance of which they act as the agents of the State in carrying into effect one of the principal objects of government, namely, the administration of justice. Swan's Stat. 182, sec. 16; 75, sec. 9; Ward v. County of Hartford, 12 Conn. 406-408; Canterbury v. Attorney-General, 19 Eng. Ch. (1 Phillips) 323; Commissioners of Trumbull County v. Hutchins, 11 Ohio, 368; Martin v. Mayor of Brooklyn, 1 Hill, 545–550; White v. City Council, 2 Hall's So. Car. 571; Ex parte Black, 1 Ohio St. 30; Conna v. New York, 2 Sandf. S. C. 356, 375. IV. The duty imposed in this case, on the commissioners, is not more imperative than that enjoined on them in relation to the repair of bridges and the means no more ample; yet it has been uniformly held that the county was not liable to respond, in damages, to a party specially injured by their neglect in the latter case. Swan's Stat. 137, sec. 7; 147, sec. 15; 181, sec. 11; Russell v. Men Comm'rs Hamilton Co. v. Mighels. of Devon, 2 Term, 667; Mackinon v. Pierson, 18 Eng. L. & Eq. 509; Mackinon v. Pierson, 25 Eng. L. & Eq. 457; Chidsey v. Town of Canton, 17 Conn. 475; Hedges v. County, 1 Gilm. 567; Freeholders v. Strader, 3 Har. N. J. 108. V. The rule, that a municipal corporation enjoying special private franchises, granted as well for its private emolument and advantage as for the public good, is liable in a civil action, for an injury resulting from the neglect of any duty which the charter or the law imposes upon it, does not apply to those minor political organizations or quasi corporations whose corporate powers and functions are conferred for the benefit of the public at large. Morey v. Town of Newfane, 8 Barb. S. C. 645; Bailey v. Mayor of New York, 3 Hill, 531-539; City of Dayton v. Pease, 24 Ohio, 80-99. 112] *VI. If the law casts a duty upon a person which he refuses or fails to perform, he is answerable in damages to those whom his failure or refusal injures. If several are jointly bound to perform the duty, they are liable jointly and severally for the failure and the refusal; but the public fund is not liable to make good their misconduct. Ferguson v. Earl of Kinnooull, 9 Clark & Finnelly, 251, 279, 280, 307, 308; Duncan v. Findlater, 6 Clark & Finnelly, 894, 903, 907, 908; Hall v. Smith, 2 Bing. 156; 9 Eng. Com. Law, 358; Conwell v. Vorhees, 13 Ohio, 523-542; Griffith v. Follett, 20 Barb. S. C. 620; Comm'rs of Brown Co. v. Butt, 2 Ohio, 348. Johnston & Carrall, for defendant in error, cited Swan's Stat. 181; Wright, 417; The Commissioners of Brown County v. Butt, 2 Ohio, 348; 18 Ohio, 229; 15 Ohio, 474. The case was further argued orally by Ferguson and Johnston. BRINKERHOFF, J. The defendant in error brought suit in the Superior Court of Cincinnati against the plaintiffs in error, and, on the 14th of May, 1855, filed therein the following petition, to wit: "The plaintiff, a citizen of the State of Ohio, and a resident of the county of Hamilton, says, that the defendants, the board of county commissioners of the county of Hamilton, in the State of Ohio, being authorized by law, in the exercise of their discretion, to erect a good and convenient court-house, upon such plan as they might project, in the city of Cincinnati, the seat of justice of such county, were on the 11th and 12th days of December, 1854, engaged |