Delaware Circuit Court.

therefore, entitled to fees for attending joint ditch meetings, for making special ditch or road duplicates, for work on commissioners' journal, for work on sheep claims and soldiers' relief funds, for making commissioners' annual report, or for platting county ditches.

2. IS LIABLE THOUGH COMMISSIONErs Allow CLAIM.

A couuty auditor who receives out of the county treasury any allowance or compensation other than that specially provided by law, is liable under the statute to an action upon his bond, notwithstanding such extra fees were allowed by the county commissioners.

3. SUIT PROperly BroUGHT IN NAME OF STATE.

The bond of an auditor is made payable to the state and an action thereon to recover money illegally taken from the county treasury, is properly brought under Sec. 1133, Rev. Stat., in the name of the state of Ohio.

4. REMEDY NOT RESTRICTED TO SEC. 896, REV. Stat.

Section 896, Rev Stat., providing for an appeal from county commissioners does not apply to proceedings to recover back illegal fees paid to officers on the allowance of such commissioners.

POMERENE, J.

In the case of the State of Ohio against L. P. Lewis and others, and in the case of the same plaintiff against John J. Ramage, the object of the petitions in the court below was for the purpose of recovering back from Lewis, the auditor, and Ramage, the auditor, and their bondsmen the amount of money that was claimed to be illegally taken from the treasury of Delaware county.

There are nine different causes of action in the petition, that is, in the case of Lewis, it being held that the same questions arise in the case against Ramage, and the decision in one would be conclusive in the other.

The petition avers that Lewis was duly elected county auditor of Delaware county in 1892, and as such auditor duly qualified and gave bond in accordance to law, entered upon the duty of his office in 1893, and continued and is still in office. The first cause of action set out in the petition reads (I will not read any others, they are in similar language), "On September 4, 1894, said Lyman P. Lewis, as such auditor aforesaid, unlawfully received on an account duly presented and allowed by the commissioners of said Delaware county for alleged services rendered said county as auditor as aforesaid, for correcting auditor's books after the board of equalization of said county met and for the year 1894 the sum of $27, which said sum was paid the said Lyman P. Lewis out of the county funds in the treasury of said county as compensation for said services.

There is, second, for services for assessing railroads, $30.00; the third count is for services attending joint ditch meeting, $12.00; fourth, for making special ditch duplicate, $635.71; fifth, for making special road duplicate, $35.00; for work on commissioners' journal of said county, $21.69; for work on sheep claims and soldier's relief funds, $100; for making commissioners' annual report, $50.00; and for platting county ditches from September 11, 1893, to September 1, 1895, $112.50; making a total of $1,066.90.

The petition further says that on July 8, 1895, a committee was appointed by the common pleas court of Delaware county, Ohio, to examine the books and papers belonging to the office of county auditor and treasurer, in pursuance to Sec. 1131, Rev. Stat., and on September 24, said committee made their report of their proceedings and the result of

State v. Lew is.

the examination to said court, and it being shown upon the presentation of said report that a breach of the bond of Lyman P. Lewis, as such auditor as aforesaid, had been made as hereinbefore stated; wherefore the plaintiff prays judgment for these several amounts.

Section 1131, Rev. Stat., under which the court of common pleas of this county appointed three persons to make the examination of the books of the auditor and of the treasurer reads this way:

"On the written application of at least twenty taxpayers of any county, to the court of common pleas, the court shall appoint a committee of three persons, to examine the books and papers belonging to the offices of the county auditor and county treasurer, and make report of their proceedings and the result of their examination. Before such committee is appointed, one or more of said taxpayers shall enter into bond to the state, in a sum and with sureties to the satisfaction of the court conditioned that the obligors will pay all the costs and expenses of such examination, if the court does not, on the coming in of such report, certify that there was reasonable ground for the application; and, before entering upon their duties, the members of said committee shall, respectively, take an oath to perform the same faithfully, and in the discharge of their duties, they shall have all the powers given in the preceding section to examiners of the county treasury.'

Section 1132, Rev. Stat., reads: "Each member of such committee shall be entitled to be paid three dollars for every day occupied in the discharge of his duties, which, with all the other costs and expenses of such examination, shall be paid out of the county treasury after being approved by said court."

Section 1133, Rev. Stat., reads: "On the presentation of the report, if a breach of the hond of either of said officers is shown, the prosecuting attorney shall forthwith commence an action on the bond of the delinquent officer; and if no such breach is reported, he shall commence an action on the bond of the applicants, unless they forthwith pay to the county said costs and expenses, or the court certifies that there was reasonable ground for the application."

This report shows, as set out here in this petition, there is a breach of the bond of the auditor. The auditor's bond is made payable to the state of Ohio and is for the faithful discharge of his duty as auditor. To the facts set out in this petition the defendant Lewis filed a demurrer, a general demurrer and special demurrer. The general demurrer, first, is that there are not facts stated in the petition sufficient to constitute a cause of action against the defendant; second, that the plaintiff has no legal capacity to sue.

This suit, as it appears from the petition, was brought about by the operation of Secs. 1131 and 1133, Rev. Stat. Section 1133, on the pre sentation of report of the breach of the bond of auditor or treasurer, provides that the prosecutor shall forthwith commence action on the bond.

The case of State v. Kelly, 32 Ohio St. 421, was an action against the treasurer, and was a suit on the bond. The state of Ohio was made plaintiff, which in such actions was properly brought in the name of the state of Ohio, the obligee of the treasurer's bond. The syllabus, paragraph 1, of this case is:

"A county treasurer who receives out of the county treasury any allowance or compensation other than that specially provided by law, is liable, under the statute, to an action upon his bond, together with his sureties, for double the amount so received."

Delaware Circuit Court.

The second syllabus is this: "Having received such allowance while acting as treasurer, or having received it in his capacity as treasurer, he can not defend against the action, when brought, by claiming that in so receiving he was acting merely as a private indivudual, and not as an official."

In all these different causes of action this language is used, that this auditor "unlawfully received on an account duly presented and allowed by the commissioners for services rendered Delaware county for correcting books," etc. It is made out as auditor for services as auditor, and as auditor it was presented to the commissioners for allowance. It was allowed, and upon that allowance, he, then, as auditor, draws his warrant upon the treasurer for that amount, and is paid.

The object of this suit is to recover back these sums for the reason that they were illegally paid. It is claimed that there is no authority in law by which these claims are allowed. For, all these services therein mentioned the salary allowed an auditor of this county covers; that is the claim. It has long since been settled in Ohio that an officer whose fees are regulated by statute can charge fees only for those services for which_compensation is fixed by law. Fees are not allowed by implication. There are no constructive fees. The fees given are mentioned or they are not allowed. That will be found in Debolt v. Trustees, 7 Ohio St. 227; Anderson v. Commissioners, 25 Ohio St. 13.

But this demurrer, being a general demurrer, admitting these facts to be true, the claim is that the commissioners in allowing these claims acted in a judicial capacity and that it was a judgment, and was final. It would be admitting the facts as charged in the petition that there was no authority of law for these fees, but the board of county commissioners duly passed upon it and allowed it, and there was no way of getting around that except by appeal.

There is a statute, Sec. 896, Rev. Stat., that allows appeal from the allowance of commissioners. We do not think that statute applies to cases of this kind. Besides, who would appeal from the judgment of the commissioners? You could hardly expect the commissioners to appeal in this case; hardly expect the auditor to appeal when the claim was allowed; he had the money in his pocket; he was satisfied. The question is, is it a judicial act, such as all are bound by, and for which there is no remedy? We think such a doctrine would be very dangerous in Ohio. An officer making out a claim and presenting it to the commissioners, having it allowed and paid, that that adjudication is final, certainly would be a very dangerous rule in the state of Ohio.

Some authorities have been cited to us from other states pointing in that way, but this case has been before this court before in this circuit, and we find Swartz v. Wayne Co. (Comrs.), ante 590, which was recently affirmed in May by the Supreme Court. The court there held that there being no statutory fees given to the probate judge for making out this report, he could not receive them. That was one of the things he had to do at his office. It was further claimed and argued in that case that it settled it was final. It was further claimed that being paid under a mistake of law it could not be recovered. Afterwards, at a subsequent term, suit was brought against the auditor for illegal tees which had been paid to him. In that case, as I remember, the facts were something like this: The auditor was in doubt whether he was entitled to these fees. It was fees for putting taxes on street improvements. He had doubts whether he was entitled to it, and at the close of the term he

State v. Lewis.

attended an auditor's convention in Columbus. The matter was discussed there and their general opinion was that auditors were entitled to extra fees and compensation. He went home and made out a report in accordance with that and presented it to the commissioners who allowed it and paid it. It was conceded upon the trial by all parties that the auditor was an honest man, that there was no intention to deceive the commissioners, aud he was a man that would rather give five dollars than take one dollar from the county illegally. But according to the law no fees are given for that service. His salary is compensation for that service, and under the rule of law he is not entitled to it.

The case in Lucas county was cited and also several others. The action brought by the commissioners was not brought upon the bond; this is brought upon the bond in pursuance of this section and rules laid down. So we think clearly that this action is properly brought, and we further think there was no error in judgment of the court of common pleas in overruling the demurrer and the case is affirmed without penalty. (The same entry in both cases.)

PAYMENT.

[Cuyahoga Circuit Court, April Term, 1896.]

Caldwell, Hale and Marvin, JJ.

*MARY A. Sampsell v. MUTUAL BUILDING & INVESTMENT Co. VOLUNTARY PAYMENT WHICH CANNOT BE RECOVERED.

A payment to a building society, made by a member thereof, of an amount in dispute between them, as to whether it is legally due for interest on a mortgage held by the society on the member's property, the society threatening unless such money is paid to oreclose the mortgage and sell the property, is a voluntary payment and cannot be recovered back.

HEARD ON ERROR.

MARVIN, J.

This case comes here upon a petition in error to reverse the judgment of the court of common pelas. The plaintiff here was the plaintiff below.

The case was submitted to the court below upon a demurrer to the amended petiton of the plaintiff. That demurrer was sustained, and the plaintiff not desiring to plead further, judgment was rendered for the defendant.

The case was brought here for review by this court.

The amended petition says that one Eliza Swartz became a member of the Mutual Building & Investment Company, which was a corporation under the statutes of Ohio, providing for the incorporation of building and loan associations. She became the owner of quite a large number of shares. The shares were $200 each, and she desired to make a loan from the association of $4,000. She did make the loan, but she had no opportunity to bid for that loan. A loan was made to her and she was required in order to secure it, to enter into contract, a copy Affirmed by the Supreme Court without report, 59 Ohio St. 627.

Cuyahoga Circuit Court.

of which is set out in the petition, and give a mortgage upon certain real estate described in the petition.

This contract required of her the payment of six per cent. interest upon the money loaned, and a premium of thirty-five cents each month upon each $100 loaned, besides the dues she had paid.

I have already stated that the petition shows that she had no opportunity to bid by competitive bid. The officers of the association refused to loan except under this kind of agreement by which, among other things, she was to pay as a premium thirty-five cents on each $100 for every month.

Now it is urged that this contract was usurious, because this premium, added to the six per cent., would make a greater rate paid for the use of money than the interest which is allowed by law, and that the statute in reference to building associations, which provides that because in paying a premium one pays more than the rate of interest allowed by law, does not relieve this from being a usurious contract; that the premium there meant is the premium paid where one has an opportunity to bid.

The language of the statute as first indicated in 1867, is that the corporation shall be authorized and empowered to levy an assessment by rates of stated dues, fines, interests and premiums on loans by the right of precedent, and that though the compensation is greater than allowed by law, it shall not be considered usurious.

I think the statute was amended, but the statute as it now reads omits the words after premium "bid by members for the right of precedent." These words are omitted.

It is urged on one hand that that makes the statute have a different meaning than it had before; and on the other side it is urged it has no different meaning.

We did not find it necessary to determine that question in order to determine this case. I think that this court has an opinion on that subject, but that question does not need to be determined.

This Eliza Swartz made the loan, and subsequently a mortage of the same kind was made to secure that loan. That loan was for $400. The first loan was $4,000.

Eliza Swartz died, and bequeathed this real estate and her stock in the loan association to another party in trust and that party sold not only the property but the stock, to another. I think there was another transfer after that. At any rate, Mrs. Sampsell, by virtue of these several transfers became the owner of this real estate, and of this stock in the loan association.

She desires now to have a cancellation of the mortgage upon the property, and on the provision of the by-laws of the corporation, by making payments after giving her credit for what had been paid, in the way of monthly dues and the like, making payment for enough more to pay up the interest and the premium up to the time of cancellation, she would be entitled to the cancellation. Making the computation on the assumption that the premium of thirty-five cents per month on each one hundred dollars is usurious, and that therefore she is bound to pay only six per cent. on her loan, she owes the association, she says, $2,790, on that loan.

The association says that they were entitled to the thirty-five cents premium, and that therefore she owes upon that first loan $3,335.68, making an addition of $545.68.