Error
to circuit court, Lucas county.
Error
to circuit court, Delaware county.
Actions
by the board of commissioners of Lucas county against Charles
H. Jones, auditor of Lucas county, and by the state of Ohio
for the use of Delaware county, against Lyman P. Lewis and
others. From judgments overruling general demurrers, which
were affirmed by the circuit court, defendants bring error.
Affirmed.
The
first-entitled action was brought in the common pleas of
Lucas county by the filing of a petition, copy of which
follows: ‘The Board of Commissioners of Lucas County
Ohio, Plaintiff, v. Charles H. Jones, Auditor of Lucas
County, Ohio, Defendant. Petition for Submission of Case
Under Section 5207, Rev. St. Ohio. The said plaintiff and
defendant represent that the plaintiff is the
duly-constituted board of commissioners of Lucas county
Ohio, and that the defendant is the duly elected, qualified
and acting auditor of Lucas county, Ohio, and has been for
three years last past. They further represent that a bona
fide controversy exists between them as to the legality of
the payment of one hundred dollars ($100.00) made by
plaintiff, as commissioners of Lucas county, Ohio, to the
defendant, as auditor of Lucas county, Ohio, for the services
hereinafter mentioned; and the plaintiff and defendant do
hereby mutually agree upon the following statement of facts
upon which this case is founded, and from which this
controversy has arisen: As provided in section 917, Rev. St
the plaintiff, as the board of Lucas county, Ohio,
commissioners, annually makes a detailed report in writing to
the court of common pleas of their financial transactions
during the fiscal year. The annual report of the fiscal year
ending August 31, 1894, shows that the plaintiff allowed to
the defendant, he having been employed per resolution hereto
attached, marked ‘A,’ the sum of one hundred
dollars ($100.00) as compensation for his services in
preparing and making the annual report required by section
917 for the fiscal year ending August 31, 1893. The auditor,
by his deputies, prepared the said report for the year ending
August 31, 1893, and the said sum of one hundred dollars
($100.00) was, on December 16, 1893, allowed by plaintiff
upon a regular voucher, and duly paid out of the general
fund, the same as all other services and salary of the
auditor are paid. Said annual report has been made by the
defendant and his predecessors in office from time
immemorial, and as constantly paid by the commissioners out
of the public moneys. It is stipulated that the amount of
said compensation, to wit, one hundred dollars ($100.00), is
entirely reasonable for the work done and services rendered;
that the work was done in accordance with a long-established
custom; and at the time the services were rendered it was
expected on the part of the auditor that he should receive
the customary allowance therefor. As a matter of fact, said
report of the commissioners was made by the deputies in his
office outside regular working hours, and the auditor turned
this $100.00 over to the deputies who made this report, as
pay for their extra work and services. It is contended by the
plaintiff, acting upon the information given them by the
committee who examined the annual report of 1894, that the
aforesaid payment of one hundred dollars ($100.00) was
illegal, and unvarranted by law; that it is the duty of the
auditor, as clerk of the board of county commissioners, to
make said report without compensation, it being one of his
official duties imposed by law; and that plaintiff is
entitled to recover back said one hundred dollars ($100.00),
with interest from December 16, 1893, for the purpose of
paying it back into the county treasury. It is contended by
the defendant that the law does not require defendant, as
auditor, to make such report at all, but that the law imposes
this duty upon the commissioners personally; and that, if he
makes said report at the request of the commissioners, and
for the commissioners, he is entitled to a reasonable
compensation therefor. It is stipulated that both the annual
reports of 1893 and 1894, and all the vouchers and warrants
pertaining to the payment of said one hundred dollars ($100)
may be used at all hearings of this case for the purpose of
evidence or illustration in argument, if required. It is
mutually stipulated that, if the foregoing allowance of one
hundred dollars ($100) is not regular and proper under the
law, judgment for one hundred dollars ($100) and interest
from December 16, 1893, shall be rendered for plaintiff and
against the defendant, with costs; but that, if said
allowance is legal and proper under the law, judgment shall
be allowed in favor of defendant and against plaintiff for
costs. Wherefore plaintiff and defendant pray the court to
hear this case, and determine this controversy, as provided
by section 5207, Rev. St. Ohio, and that judgment be rendered
in accordance with the law applicable to the foregoing agreed
statement of facts. Jacob Engelhardt, P. Hassenzahl, Jr., J.
L. Pray, Board of Commissioners, Lucas County, Ohio. Chas. H.
Jones, Auditor of Lucas County, Ohio.'
The
resolution referred to is as follows: ‘Resolved, that
the county auditor be, and he hereby is, instructed to make a
condensed report to the court of common pleas of the
proceedings of this board for the fiscal year ending the
first Monday in September, 1894, and that his compensation
be, and the same is hereby, fixed at $100 for said
work.’
Upon
argument and submission the court found for the plaintiff,
and rendered judgment for $106.27, and costs, which was
affirmed by the circuit court.
The
action of Lewis et al. v. State was commenced by the filing
of a petition in the common pleas of Delaware county on the
part of the defendant in error against the plaintiffs in
error, which, as to the first cause of action, is as follows:
‘State
of Ohio, for the Use of Delaware County, by George Coyner,
Plaintiff, v. Lyman P. Lewis, Rufus Carpenter, J. L.
Williams, B. Smith, and Robert G. Lybrand Defendants.
Petition. First cause of action: The plaintiff, by George
Coyner, prosecuting attorney in and for the county of
Delaware, and state of Ohio, says: That on the 8th day of
November, in the year of our Lord one thousand eight
hundred and ninety-two, the defendant, Lyman P. Lewis, at a
general election held in the county of Delaware, and state
of Ohio, was elected auditor of said county of Delaware,
and state of Ohio. That on the 22d day of May, 1893, he,
the said Lyman P. Lewis, with his co-defendants as his
sureties, executed to the state of Ohio his bond (a copy of
which is hereto attached, and marked ‘Exhibit
A’), in the penal sum of ten thousand dollars, to
secure the faithful performance of his duties as such
auditor, which said bond the board of county commissioners
of said county of Delaware duly approved. That the said
Lyman P. Lewis did, on the second Monday of September next
after his election, to wit, on the 11th day of September,
A. D. 1893, assume, enter, and take upon himself the duties
of said office of auditor of said Delaware county, and was
such auditor at the time of committing of the wrongs
hereinafter stated. That on the 4th day of December, A. D.
1894, said Lyman P. Lewis, as such auditor aforesaid,
unlawfully received, on account duly presented to and
allowed by the commissioners of said Delaware county, for
alleged services rendered said county as auditor aforesaid,
for correcting assessor's books after the board of
equalization of said county met, and for the year A. D.
1894, the sum of twenty-seven dollars ($27.00), which said
sum was paid to the said Lyman P. Lewis, out of the county
funds in the treasury of said county, as compensation for
said services.'
In
succeeding causes of action it was averred that the auditor
had unlawfully received from the treasury of the county
money as compensation upon the following claims for
services, viz.: Second cause: For secretary's fees in
assessing railroads. $30. Third cause: For attending a
joint ditch meeting of the commissioners of Delaware and
Marion counties, $12. Fourth cause: For making special
ditch duplicates, $635.71. Fifth cause: For making special
road duplicates, $85. Sixth cause: For work on
commissioners' journal, $21.69. Seventh cause: For work
on sheep claims and soldiers' relief fund, $100. Eighth
cause: For making commissioners' annual report, $50.
Ninth cause: For platting county ditches, $112.50. It was
averred, also, that on July 8, 1895, a committee was
appointed by the court of common pleas of Delaware county
to examine the books and papers belonging to the offices of
the county auditor and county treasurer, and that the
report of the committee afterwards presented to the court
showed a breach of the bond of the auditor. The condition
of the bond referred to is as follows: ‘Now, if the
said Lyman P. Lewis shall faithfully discharge the duties
of his said office during the term for which he has been
elected as aforesaid, then this obligation shall be void;
otherwise the same shall be and remain in full force and
virtue.’
A
general demurrer to the foregoing several causes of action
was interposed, which was overruled, and, the defendants not
desiring to further plead, judgment was rendered for the
plaintiff, which was affirmed by the circuit court. A
reversal is asked.
1. The
board of county commissioners represents the county, in
respect to its financial affairs, only so far as authority is
given to it by statute. It may pass upon and adjudicate
claims against the county for services in a...
