Chas. H. Jones, Aud'r v. Board of Com'rs of Lucas Co., O. It is a principle of law, well settled, in this state as well as elsewhere, that an officer of the public can receive only such compensation as the law allows. This has been repeatedly determined, and cases to that effect are before us, as in 7 Ohio St. 237, and 25 Ohio St. 13. It is argued here, with some ingenuity, I confess, that certain statutes prescribe that the auditor shall act as secretary of the board of commissioners, and that where that language is used, the powers and duties conferred upon the auditor are different, and impliedly broader, than they would be if he were to act as clerk-which is the word used in certain other statutes. The niceity of that reasoning is impaired somewhat by the fact that the word "clerk" is used in the statutes relating to that officer, whether he be clerk or secretary of the board of commissioners, in the chapter relating to county commissioners, to-wit: sec. 850, which provides that the clerk shall perform certain duties; and the word "secretary" is used in the chapter relating to the duties of the county auditor; and it is clear from the reading of these statutes, that the duties required of the county auditor-who in one chapter is described as a clerk, and in the other as secretary, are the same, whether he fills one position or both, and they are therefore used by the legislature in this chapter as synonymous terms -describing the same officer. Section 850 provides that "the clerk shall keep a full and complete record of the proceedings of the board, and a general index thereof, in a suitable book provided for that purpose," and the section goes forward and prescribes fully and completely the duties of the clerk. It does not say who he shall be. Section 917-which is the one I have referred to-requires the county commissioners to make an annual report. In section 1021-the statutes not having provided who shall be clerk, nor how the commissioners are to get a clerk-it is provided that the auditor, by virtue of his office, shall be the secretary of the board of county commissioners, except as otherwise provided Chas. H. Jones, Aud'r v. Board of Com'rs of Lucas Co., O. by law. That he shall aid them, when requested, in the performance of their duties, and shall keep an accurate record of all their proceedings; and shall carefully preserve all documents, books, records, maps and papers required to be deposited and kept in his office. So that, as I have said, this office being the same--whether you call him clerk or secretary-the question then arises whether he is entitled to any compensation in case he does the work he is required to do by law, or in case he does some that he is not? There are several sections, to which I need not refer, relating to the compensation of county auditors, and section 1078 provides: "The fees and compensation provided for by the foregoing sections shall be in full for all services lawfully required to be done by the auditors of such counties; and it shall be unlawful for any county auditor to charge or receive any other or further fees or compensation, either as clerk of any board, or for any other services rendered by him." Now, you cannot very well evade the statute by saying that because the legislature says he shall be secretary of the board of commissioners, that this provision of the statute does not apply, providing that he shall not receive any other fees. As before stated, it is a principle of law, regardless of the statute--that he shall receive no fees except those allowed by law; and here the statute steps in and says he shall receive no other fees for any other services performed by him as auditor, or as clerk of any board or for any other service than those prescribed by the foregoing sections. If he may be lawfully required to make out these reports, then he is compensated for it by such compensation as an auditor gets. If he canot be required to make them out, the commissioners cannot employ any other person to make them out and charge the county for that service. But the statute, in this very chapter, prescribes that he shall aid the commissioners in the performance of such services as they may require, acting as their secretary or clerk, either one; and it Chas. H. Jones, Aud'r v. Board of Com'rs of Lucas Co., O. would seem that they might require him to make out this report for them, and the compensation which he has received as auditor is in full of anything that he can charge or receive. And here I would stop; but we are of opinion that another question is raised in this case; and it is a question that was not considered by the court of common pleas, and evidently was not argued there. It is insisted here that the commissioners of the county, in their official capacity, having allowed this compensation to the auditor and directed it to be paid, and he having received his pay in accordance with such allowance of the board of commissioners, that they cannot maintain an action against him to recover back moneys so paid out by their allowance. And the court is cited to an authority in 35 Ohio St. 201-to which I will refer directly. By section 845, the board of county commissioners are, by statute, made capable of suing and being sued and of pleading and being impleaded, and are required to "ask, demand and receive, by suit or otherwise, any real estate or interest therein, whether the same is legal or equitable, belonging to their county, or any sum or sums of money, or other property due to such county; and the money so recovered in any case shall be by them paid into the treasury of the county, and they shall take the treasurer's receipt therefor, etc." And by section 894, it is provided that "no claims against the county shall be paid otherwise than by the allowance of the county commissioners, upon the warrant of the county auditor, except in those cases in which the amount due is fixed by law, or is authorized to be fixed by some other person or tribunal." And section 1024 provides: "The auditor shall issue warrants on the county treasurer for all moneys payable out of the treasury, when the proper order or voucher is presented therefor; but he shall not issue a warrant for the payment of any claim against the county unless the same is allowed by the county commissioner, except in cases where the amount due is fixed by law, or Chas. H. Jones, Aud'r v. Board of Com'rs of Lucas Co., O. is allowed by some other officer or tribunal authorized by law to allow the same." Now, it is clear that this claim, if it ever was a claim against Lucas county-was a claim not fixed by law, nor to be allowed by any other person or tribunal, and therefore, if allowed by any body, it must have been allowed by the county commissioners, or must have been presented to them for allowance. The case in 35 Ohio St. 201, which is relied upon, is the case of Commissioners v. Noyes, page 201, was an action commenced by the county commissioners, to recover certain sums of money which had been paid to him under a contract made by the county commissioners with him for indexing certain records in the probate judge's office; and there was an answer made by him, setting forth very fully the manner in which he had received his money, and claiming that it was under a lawful contract entered into by the board of commissioners with him, and that they had allowed these claims; that warrants had been drawn by the auditor in pursuance of the allowance for the payment of the work done by him for the county, and which was done in pursuance of a legal contract. To this the county replied that the said contract was illegally entered into; that the commissioners were not authorized by law to contract for such services; that the work was unnecessary, uncalled for and of no value to the county; that the contract was let without competition-without advertisement and that therefore it was entirely void. To this there was a demurrer; and it was upon the questions raised by the demurrer, and none others, that the case went to the Supreme Court. In the course of the opinion, by Judge White, it was said: "As to the second question, there is no denial, in the reply, of the facts averred in the answer, that the warrants were issued on the order of the commissioners, in payment Chas. H. Jones, Aud'r v. Board of Com'rs of Lucas Co., O. for work done by the defendant on account of the county, under a contract with the commissioners. It is alleged, in the reply, that the contract was illegally entered upon, and that the commissioners were not authorized by law to contract for the services. But of what the services consisted it is not stated, nor is there any statement of facts upon which the allegation of illegality and want of authority is founded. As the allegation stands, it is a mere averment of a legal conclusion; and, as a pleading, is of no legal effect or significance. So that, so far as the reply was concerned, it did not raise very much of a question, and we are left to the answer, without any reply. The answer set up a legal contract for labor performed by Noyes for the county, or work performed for the county. And the court further say: "No fraud is alleged to have been practiced on the commissioners to induce them to allow the claim and to order its payment; nor is it alleged that the allowance or order was made under any mistake. Now, it certainly requires neither argument, nor the citation of authorities, to show that where work has thus been done, on account of the county, under an agreement with the commissioners, and has been accepted and paid for, that they can maintain no action, in the absence of fraud or mistake, to recover back the money thus paid." Now, that is what the court said about that kind of a case -there being no allegation of any fraud or mistake or of any fact from which fraud or mistake could be inferred or upon which it could be predicated, therefore the commissioners were in no position to recover back money that it was alleged they had paid upon a contract legally made by them, for work performed for the county. And that is where that case stands now; and all that the decision amounts to, so far as it goes-and I take this trouble to refer to it because I know that it is a case relied upon in all cases similar to this, as authority against the proposition that money can be recovered back once having been allowed by the county com |