While sitting as a judge in the common pleas court, I passed on the demurrer just considered by Judge Parker, and for that reason have taken no part in the review of the ease by the circuit court.
While the opportunity offers, however, I wish to place myself in accord with my associates upon the circuit bench, and with what I believe to be a correct interpretation of the law, by assenting to the criticism which has been made upon certain expressions in the opinion rendered by me in the court below.
I refer to the expressions following the dicta of one of the judges of the Supreme Court in the interpretation of the statutes in force at the time of the decision of the Vindicator Publishing’ Company ease, and indicating that a county at that time had no cause of action to recover, through its officials, money which had been paid as the price of bridges under invalid contracts.
M. W. Hunt and Basil Meek, for plaintiff in error. Hunt c& Gam. for defendant in error.My present judgment is that the county had such cause oil action, even prior to the enactment of the amendment of 1898, and that the amendment was the designation of an official who might institute the suit on behalf of the county. Before that time, the power to protect the interests of the county so far as suing to recover moneys unlawfully paid out was concerned, resided, under the general statutes, in the county commissioners. -By reason of possible complicity of county commissioners in the making of illegal and invalid contracts, the Legislature by this amendment gave to another public officer, the power to represent the county in the protecting of its interests. Provision had already been made that the prosecuting attorney might, by proper suits, prevent the carrying out of unlawful contracts, but there was no provision that the prosecuting attorney could so represent the county in the recovery of money which had been illegally paid from its treasury.
In order further to protect the interests of the public the amendment of 1898 empowers any tax-payer to represent the county in case the prosecutor refuses to act as such representative. By these enactments the law clothes either the prosecuting attorney or the tax-payer with a certain representative capacity to act for the county, not only in the endeavor to bring back to the treasury the funds which have been unlawfully taken therefrom, but also in making such proffer for the county as the county should justly make as a condition precedent to obtaining redress of the wrong which has been committed against the public.
It is because of the fact that the opinion which I announced from the common pleas bench has gone into one of the published journals, and because the decision which has been rendered by the circuit court at the present hearing is very likely to be reported, that I have thought best to make these statements in order to harmonize any apparent difference between the opinion entertained by my associates and my own.