State v. Fronzier

• Decision Date: 22 October 1907
• Docket Number: 10343
• Citation: 82 N.E. 518,77 Ohio St. 7
• Parties: The State, Ex Rel. Hunt, Prosecuting Attorney, v. Fronzier Et Al.
• Court: Ohio Supreme Court

82 N.E. 518

77 Ohio St. 7

The State, Ex Rel. Hunt, Prosecuting Attorney, v. Fronzier Et Al.

No. 10343

Supreme Court of Ohio

October 22, 1907

Contract executed with county for building bridges - Void under Section 2834b, Revised Statutes - Action under Section 1277 Revised Statutes, to recover money paid by county under contract - Offer to put contractor in statu quo, necessary when.

Section 1277, Revised Statutes, which authorizes a prosecuting attorney to bring action to recover back money of the county which has been misapplied, or illegally drawn from the county treasury, does not authorize the recovery back of money paid on a county commissioners' bridge contract fully executed but rendered void by force of section 2834b, because of the lack, through inadvertence, of a certificate by the county auditor that the money is in the treasury to the credit of the fund, or has been levied and is in process of collection there being no claim of unfairness or fraud in the making, or fraud or extortion in the execution of such contract for such work, nor any claim of effort to put the contractor in statu quo by a return of the bridge or otherwise, the same having been accepted by the board of commissioners and incorporated as part of the public highway.

The State, on the relation of the prosecuting attorney of Sandusky county, brought its action in the common pleas of that county against S. M. Fronizer, N. V. Elliott and The Bellefontaine Bridge and Iron Company, by virtue of section 1277, Revised Statutes, for the sum of $1931, as money illegally drawn from the treasury of said county by the defendants.

The substance of the petition as amended avers the making on and before July 18, 1903, of cer- tain contracts by the defendant Company through its agent Fronizer, with a majority of the board of county commissioners, for furnishing the materials and performing the work therein specified for the construction of certain bridges in Sandusky county, and the repair of other bridges, at prices therein named, the same to be paid on the first day of January, 1904, on the completion of the same. The contracts so made were illegal contrary to and in violation of law, and unlawful, as the defendants Fronizer and the Company, as also the said commissioners then well knew. Said board did not, nor did any member thereof, before nor at the time of entering into said contracts, nor at any other time, procure the certificate of the county auditor as required by section 2834b, Revised Statutes; that the money required for the payment of the obligation created by the contracts, or any part thereof, was in the treasury of said county to the credit of the bridge fund of said county, or had been levied and placed on the duplicate of said county and in process of collection and not appropriated for any other purpose, as in said statute provided; nor any such certificate made and filed by the county auditor at the time said contracts were entered into and no such fund not otherwise appropriated was in the treasury of said county at the time of the payment of said obligations. The prices and amounts agreed upon in said contracts were exorbitant, largely, grossly and fraudulently in excess of the true and reasonable value thereof; to-wit, double the real value thereof and more as the defendants Fronizer and the Company then and there well knew, to the great damage of the county and the taxpayers thereof.

The said contracts were entered into secretly between two of the board of county commissioners and Fronizer, who then and there purposely and fraudulently kept and concealed all their acts and movements concerning said contracts from the other member of the board, and said contracts, nor any of them, were never entered in open public board meeting or session of the board; nor was any minute or record made by the commissioners or the auditor of any proceedings in making said contracts in the journal or proper record of said board.

On the 20th day of December, 1903, and before any sum was due and payable according to the terms of said illegal contracts, said defendants (Elliott claiming to be agent for the Company), well knowing the contracts to be so fraudulent, illegal and wrongful, wrongfully procured the allowance by two of the commissioners, who then well knew that said contracts were so fraudulent, illegal and wrongful, procured from the treasury of said county payment of the amount of said illegal contracts, to-wit: the sum of $1931.00 which relator demands to be paid back into the treasury of the county.

The three defendants filed separate answers but in substance the same. They admitted that the Company, through Fronizer, entered into the contracts set forth; that they were informed and believed that in making the contracts the commissioners inadvertently failed and neglected to procure the certificates of the auditor of the county, as set out in the petition, and that said auditor inadvertently failed and neglected to make and file such certificates before said contracts were entered into; they admit the allegations of the petition as to the omission of such certificates. They admit the voluntary payment to the Company's agents and aver that each and every of said contracts has been and was, before bringing of this action, fully performed and executed, and the defendants deny each and every allegation of the petition not hereinbefore specifically admitted to be true; and especially deny all allegations of fraud, conspiracy, excessive prices and fraudulent conduct on part of any of defendants, and of damages. As an affirmative defense it was pleaded that before any of the Company's claims for said bridges, repairs, etc., had been adjudicated or payments made thereon, each and all the bridges, materials and repairs mentioned in several causes of action in the petition, had been in good faith duly furnished to said Sandusky county and erected and placed in all respects as required by the several contracts therefor, which have been fully executed and performed; that said bridges, materials and repairs on being so erected, furnished and placed, were received, accepted and appropriated to its own use by said county and by the board of county commissioners thereof who had then full jurisdiction and power and authority over the matter of the purchase and erection of said bridges, materials and repairs for said county and who then had full knowledge of all the facts concerning the making of the contracts therefor. Ever since said bridges, etc., were so received, accepted and appropriated, they have been retained in the possession of said board and its successors, and of said county, and have been constantly used and enjoyed by them and by the inhabitants and taxpayers of said county as necessary and essential parts of the public structures and highways of said county, and no part of said bridges, materials or repairs, or of the value thereof, has ever been offered or tendered back to the defendants or any of then by said county or any of its officers or authorities.

To this defense the relator interposed a general demurrer. On hearing, this demurrer was overruled, and the relator not desiring to plead further, judgment was entered dismissing the petition and for costs. This judgment being affirmed by the circuit court relator brings this proceeding in error.

Mr. M. W. Hunt, prosecuting attorney, and Mr. Basil Meek, for plaintiff in error, cited and commented upon the following authorities:

Bridge Co. v. Campbell et al., 60 Ohio St. 406; Printing Co. v. State, 68 Ohio St. 362; Jones, Auditor, v. Commissioners, 57 Ohio St. 189; Black's Law Dictionary, "Rescission"; Insurance Co. v. Hull, 51 Ohio St. 270; Davis v. Justice, 31 Ohio St. 367.

Mr. S. H. West; Messrs. Hunt & Garn; Mr. Lester Wilson and Messrs. Kline, Tolles & Goff, for defendants in error, cited and commented upon the following authorities:

State ex rel., v. Zumstein et al., 4 C. C., 268; 2 Cir. Dec., 539; State, ex rel., v. Fronizer et al., 28 C. C., 709; Lessee of Bond v. Swearingen?? Ohio, 403; Felix v. Griffiths, 56 Ohio St. 39; Insurance Co. v. Bernard et al., 33 Ohio St. 459; Brown v. Witter, 10 Ohio 143; Dudley et al. v. Little, 2 Ohio 504; Lear et al. v. McMillen, 17 Ohio St. 464; Follett v. Saviers, 35 Bull., 222; Reed v. McGrew, 5 Ohio 375; Taft v. Wildman, 15 Ohio 123; Williamson v. Moore, 2 Disney, 30; Railroad Co. v. Steinfeld, 42 Ohio St. 449; Saxton v. Seiberling, 48 Ohio St. 554; Insurance Co. v. Burke, 69 Ohio St. 294; Trustees v. Cherry, 8 Ohio St. 565; Lee v. Monroe County, 14 O. F. D., 43; Marsh v. Fulton County, 10 Wall., 676; Louisiana v. Wood, 102 U.S. 294; Chapman v. County of Douglas, 107 U.S. 348; Bridge Co. v. Town of Utica, 17 Fed Rep., 316; Riddle v. Bryan et al., 5 Ohio 49; State v. Blake et al., 2 Ohio St. 147; Pancoast v. Ruffin et al., 1 Ohio 381; Medical College v. Zeigler et al., 17 Ohio St. 52; State, ex rel., v. Dombaugh, Clerk, 20 Ohio St. 167; Dwarris, 144, 230; Sutherland Statutory Construction, sections 217, 231, 263, 266, 282, 325; McIntyre et al. v. Ingraham et al., 35 Miss. 25; Fosdick v. Village of Perrysburg, 14 Ohio St. 472; Doll v. Barr, 58 Ohio St. 113; Gas Co. v. City of Tiffin et al., 59 Ohio St. 420; City of Cincinnati v. Holmes, Admr., 56 Ohio St. 104; Crane v. Reader et al., 22 Mich. 322; Pretty v. Solly, 26 Beavan, 610; Gardner v. Collins et al., 2 Peters, 93; Brower et al. v. Hunt et al., 18 Ohio St. 341; McDowell v. Sapp, 39 Ohio St. 558; Goshorn et al. v. Purcell, 11 Ohio St. 641; Stetson v. Bank, 2 Ohio St. 167; Printing Co. v. State, 68 Ohio St. 362; Krause et al. v. Morgan, 53 Ohio Ct. 26; Reynolds v. Hindman, 32 Ia. 146; Taylor, Admx., v. Manufacturing Co., 143 Mass. 470; Grand, Admr., v. Railroad Co., 83 Mich. 564; Ho...