text:
    Jones, Auditor, v. Commissioners of Lucas County. Lewis et al. v. The State of Ohio, for use, etc.
    Error to the Circuit Court of Lucas county.
    Error to the Circuit Court of Delaware county.

      Board, of county commissioners — Authority of, as to county finances —Cannot bind county by allowing illegal claims — County auditor not entitled to extra compensation, when — Sections 917, 1131, 894, 896 and 1077, Revised Statutes.

    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 matter, which, under the statutes, may be the subject of alegal claim against the county. But itis without jurisdiction to entertain or adjudicate claims which in themselves are wholly illegal and of such a nature as not to form the subject of a valid claim for any amount. And an attempt by the board to allow a claim of such character will not bind the county.
    2. The county auditor is not entitled to extra compensation from the treasury of the county for services in making the report for the county commissioners of their financial transactions required by section 917, Revised Statutes. Nor is he entitled to extra compensation for any of the following items of service, to wit:
    1. Correcting assesors’ books after the meeting of the board of equalization.
    2. Fees, as secretary in assessing railroads.
    3. Attending a joint ditch meeting of commissioners of adjoining counties.
    4. Making special ditch duplicates.
    5. Making special road duplicates.
    6. Work on commissioners’ journal.
    7. Work on sheep claims and soldiers’ relief fund.
    8. Platting county ditches.
    Whatever service the auditor may render respecting such matters is deemed compensated by the salary attached to the office. An attempted allowance of a claim for any of such services by the commissioners is unauthorized and void, and money drawn by virtue of such allowance may be recovered back in a proper action for the benefit of the county.
    3. The presentation by a county auditor to the commissioners, of a claim for any of such claimed services, and the drawing of money for the same from the county treasury, by means of his own warrant attempted to be authorized by an allowance by the commissioners, is a violation by such auditor of official duty, and a'breach of that condition of his bond which provides for the faithful discharge of the duties of such office.
    4. Where an examination of the books and papers belonging to the office of the auditor has been made by a committee appointed by the court of common pleas under authority of section 113], Revised Statutes, and the report of such committee shows a breach of the auditor’s bond by the illegal drawing of money from the county treasury, an action in the name of the state, for the benefit of the county, brought by the prosecuting attorney against the auditor and the sureties on his bond, is a proper form of action to recover money so . illegally received by the auditor.
    (Decided December 17, 1897.)
    The first entitled action was brought in the common pleas of Lucas county by the filing of a peti-. tion, copy of which follows:

      The Board of Commissioners of Licas Co., Ohio, plaintiff, v. Charles H. Jones, Auditor of Lucas Co., Ohio, defendant.
    “Petition for submission of case under section 5207, Revised Statutes of 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) 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, Revised Statutes, 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), 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), 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) 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 commissioners was made by the deputies in his office outside regular working hours, and the auditor turned this $100 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) was illegal and unwarranted 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), 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; hut 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, Revised Statutes of Ohio, and that judgment be rendered in accordance with the law, applicable to the foregoing- agreed statement of facts.
    “Jacob Englehardt,
    “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 Letois et al. v. The 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 Delcmare county, by George Goyner, plaintiff, v. Lyman P. Lewis,

      Rufus Carpenter, J. L. Williams, B. Smith and Robert O. Lybrancl,' 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 eighth 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 twenty-second 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 eleventh 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 fourth 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), 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, thirty dollars. Third cause: For attending a joint ditch meeting of the commissioners of Delaware and Marion counties, twelve dollars. Fourth causé: For making special ditch duplicates, six hundred and thirty-five dollars and seventy-one cents. Fifth cause:. For making special road duplicates, eighty-five dollars. Sixth cause: For work on commissioners’journal, twenty-one dollars and sixty-nine cents. Seventh cause: For work on sheep claims and soldiers’ relief fund, one hundred dollars. Eighth cause: For making commissioners’ annual report, fifty dollars. Ninth cause: For platting county ditches, one hundred and twelve dollars and fifty cents. 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 office 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.

      W. H. A. Head, for Jones, auditor.
    It is the duty of the county commissioners to make the annual report (section 917.)
    That duty is nowhere placed upon the auditor. If it is, it must- be by virtue of section 1021, and by reason of his being secretary of the board.
    It certainly cannot be included in the requirement that “he shall aid them, when requested in the performance of their duties.” It is one thing to “aid” in performing’ and another to perform duties. If the commissioners could “lawfully require’ ’ the auditor to make this report by virtue of that portion of the section, they could require him to perform any and all ministerial duties devolving upon them.
    The auditor’s duties as secretary of the board are simply those ordinarily required of such an officer and his duties as clerk are fully set forth in section 850 (87 O. L. 20), and are those of a recording officer merely. See definition of secretary and clerk in Century Dictionary, Anderson and Bouvier.
    The commissioners did not undertake to call upon him, as secretary of the board to do it, nor did they demand of him as auditor to make it as part of his duties as such. But recognizing that it was their report to be made out by them for themselves, they employed the auditor as if he was a third person — a party disconnected from the office to do it. He was a proper person to perform the duty, from his familiarity with the proceedings and the records of the period covered by the report.
    If it was not his duty as auditor or as clerk to do the work, section 1098 does not apply, and he should be paid for the same, either by the county or by the person who employed him to do it.
    A statute required a board to have a secretary, but made no provisions for his election or pay. He was held to be entitled to pay for work. Territory v. Norris, 1 Ore., 107.
    Allowances may be made to officers for services not rendered by them as officials, but in their private capacity. Hatch v. Mann, 15 Wend., 44; Irving v. U. S., 37 Fed. Rep., 470.
    But a contract to pay a public officer for law services rendered by him in an independent employment, not forming a part of his official duty is valid. Mechem, Public Officers, section 375; Evans v. Trenton, 24 N. J. L., 764; Niles v. Mussy, 33 Mich., 61; McBride v. Grand Rapids, 47 Mich.; U. S. v. Brindle, 10 U. S., 239.
    There can be no recovery from the plaintiff in error by the eommisioners in their official capacity. Commissioners v. Noyes, 35 Ohio St., 201.
    It is no uncommon thing for public officers to find that a long- continued practice has been improper; that rights have been assumed that did not exist; that equity courts prevent the making of contracts that have been unquestioned before. But it would be intolerable to go back, inquire into and recover from contractors that have been paid in full for contracts, solely because a wrong method had been used, or a power assumed that did not exist. 15 Am. & Eng. Ency. of Law and cases cited; 18 Id., 223 and cases cited; Ry. Co. v. Iron Co., 46 Ohio St., 44; Snelson v. Commission

      ers, 16 Ind., 29; Commissioners v. Sestser, 70 N. C., 426.

      B. F. James also appeared and orally argued for Jones, auditor.

      Charles E. Sumner for commissioners of Lucas county.
    The word “secretary” as used in section 1021, Revised Statutes is synonymous with the term “clerk” as used in section 850 and 1078; 11 C. C., 138.
    Section 850 provides that the clerk of the board of county commissioners shall' receive for indexing provided for m this section such compensation as is paid for like services in other cases. The plaintiff in error as well as county auditors, generally have universally construed the section in such a way as to constitute the auditor, clerk of the board, .by receiving fees for indexing such journals:
    If the statutes (section 1021) provided that the secretary should aid the commissioners in the performance of one duty there might be some plausibility in the argument, but the statutes-extend to all their duties, and the full performance of aDy one duty would be nothing more than aiding in the performance of their duties collectively.
    But even without this provision the secretary (or clerk) is presumed to perform such duties as are generally performed by secretaries and clerks.
    The auditor, as such secretary, is required to keep a full and complete record of the proceedings of the board (section 850). This would include a record of all financial transactions.

      Ample provision is made for the auditor’s compensation as secretary of the board by sections 1069 and 1070, as well as other sections providing special compensation. Especially is this true in view of the provisions of section 1078, therefore the case of Territory v. Norris, 1 Oregon, 107, cited, is not applicable to the case at bar.
    The making of the report being a duty required of the auditor and there being no special compensation provided by law for the services the payment of one hundred dollars ($100) for such services was illegal. Revised Statutes of Ohio, section 1078; Debolt v. Trustees Cincinnati Township, 7 Ohio St., 237; Anderson v. Board of Commissioners of Jefferson Co., 25 Ohio St., 13; Strawn v. Commissioners, 47 Ohio St., 498.
    The trend of decisions in Ohio sustain the proposition of the defendant in error that such fees may be recovered hack. Swartz v. Commissioners, 35 Bulletin, 275; Commissioners v. Dunn, 4 O. D., 260; Commissioners v. Easton, 4 Ohio Legal News, 333; Commissioners v. Dunn, 4 Ohio Legal News, 348; Commissioners v. McClure, 4 Ohio Legal News, 338.

      McElroy & Carpenter, for Lewis et al.
    It will he observed that, with the exception of the dates, amounts and kind of services performed, all of the nine causes of action in the petition in the court of common pleas are stated in substantially the same terms, to-wit:
    “That the said Lyman P. Lewis as such auditor unlawfully received on account duly presented to and allowed by the commissioners of Delaware county for alleged services rendered said county as auditor aforesaid.” It is not claimed that the services were not performed, or that they were otherwise paid for, or that there was any mistake or fraud or collusion in the allowance and payment of the same; on the contrary it is expressly averred that each and all of said claims were duly presented and allowed and that each and all of said payments were made as compensation for the services mentioned.
    The phrase “unlawfully received,” in each of said causes of action, is merely a legal conclusion unsupported by any facts, and is not admitted by the demurrer. P. C. & St. L. Ry. Co. v. Moore, 33 Ohio St., 384; Peterson v. Roach, 32 Ohio St., 374; Finch v. Board of Education, 30 Ohio St., 41.

      We contend, therefore:

      First — The presumption is that the commissioners properly performed their duties and that the claims were properly allowed and paid, until the contrary is clearly shown, Mechem on Public Officers, section 579; and as there are no facts stated in the petition showing- that they were not so allowed and paid, the court of common pleas erred in overruling- the demurrer to the petition

      Second — That, even if the petition stated facts showing that some of the payments made were unauthorized, still the action of plaintiff below cannot be maintained for the reason that the facts stated not only fail to show a violation, but show affirmatively that there was no violation of the conditions of the official bond of the auditor, which is conditioned for the faithful discharge of the duties of his said office. Revised Statutes, section 1014.
    The drawing of a warrant in his own favor by the auditor upon a claim which has been duly allowed by the commissioners, although th'e allowance of the claim may turn out to be unauthorized, is no more a violation of his bond than it would be to draw a warrant in favor of any other person under the same circumstances. • He is expressly authorized by Statute to draw his warrant for the payment- of all claims allowed by the commissioners, including his own. Revised Statutes, sections 894 and 1077.
    The warrant is not drawn until the question of his right to do so has been fairly and honestly submitted to and determined by the commissioners ; then the warrant is drawn in strict conformity with their finding and the law; no provision of the law is violated, no condition of the bond is broken.
    The liability of the sureties is limited to the official acts of the principal only — Mechem on Public Officers, section . 283 —and to the exact letter of the bond; and if the words of the bond will not make them liable, nothing can, id. section 282; State v. Medary et al., 17 Ohio, 554.
    The acts complained of do not come within the letter, and “can not work a breach of the official bond.” Carpenter et al. v. Sloane et al., 20 Ohio, 327. And they are not within the contemplation of the law requiring a bond to be given. The law has provided other safeguards against the drawing of improper fees, to-wit, that the claims shall be passed upon by the commissioners.
    The facts stated in the petition do not constitute a breach of the auditor’s bond. Furlong et al. v. State, 58 Miss., 717; and Cricket et al. v. State, 18 Ohio St., 9.

      Thwd — That in passing on claims against the county the commissioners act in a judicial capacity. Bowersox et al. v. Watson et al., 20 Ohio St., 496; Southard v. Stephens, 27 Ohio St., 649.
    An appeal lies from their decision to the court of common pleas. Revised Statutes, section 896;
      Sheppard v. Comrs., 8 Ohio St., 354; State ex rel. v. Comrs., 26 Ohio St., 364.
    The commissioners have exclusive original jurisdiction of all claims against the county except when otherwise specified, Revised Statutes, section 894, and especially of all claims for services of county auditors, Revised Statutes, section 1077. And they are provided with counsel who is bound at their request, to advise them as to the law affecting such claims. Revised Statutes, section 1274.
    And their decision thereon is final; and money paid in pursuance thereof is voluntarily paid, and in the absence of fraud or mistake of fact, or of a statute expressly authorizing a recovery, neither of which is claimed in this case, cannot be recovered back. Supervisors v. Briggs, 2 Denio, 26; Snelson v. State, 16 Ind., 29; Painter v. Polk Co., Ia., 47 N. W., 65; Sioux Co. v. Jameson, Neb., 61 N. W., 596; Heald v. Polk Co., Neb., 61 N. W., 376; State ex rel. v. Vincent Neb., 65 N. W., 50; Randall v. Logan Co., Nev., 14 Pacific, 583; County of Wayne v. Randall, 43 Mich., 137; Advertiser and Trib. Co. v. Detroit, 43 Mich., 116; People v. Foster et al., 133 Ill., 496, 18 syl.; Cox v. Mayor, etc., of N. Y., 103 N. Y., 519; Hedrick v. U. S., 16 Ct. of Claims, 88; Commissioners v. Setzer, 70 N. C., 426.
    The principles above stated, and sustained by the authorities above cited, have been uniformly held to be the law in Ohio. Commissioners v. Gherke, Wright, 493; Commissioners v. Noyes, 35 Ohio St., 201; Cincinnati v. Gas, Light and Coke Co., 53 Ohio St., 278.
    Section 1078, Revised Statutes does not deprive the commissioners of jurisdiction to pass upon the question of the validity of the claims presented.

      Fourth — Section 2770, Revised Statutes, provides that county auditors shall constitute board of appraisers of railroads; section 2771 (Am. 88 O. L., 417), that each board shall appoint one of its number secretary, and prescribes his duties; section 2775, that “each county auditor shall be paid from- the treasury of his county the sum of three dollars for each day’s attendance as a member of any board aforesaid under this chapter, and five cents a mile going to and returning from its place of meeting.”
    It is nowhere stated in the petition that any other or different fees were charged by the auditor for the services mentioned in said several causes of action than those provided in the sections of the statutes, 4480, 4506, 4507, 1075, 850, and 4456, and, moreover, the commissioners not only have general jurisdiction of said claims, as above stated, but jurisdiction of each particular claim is expressly conferred on them by said statutes.
    The statutes nowhere provide that the auditor shall perform any duty in respect to this report, and he is subjected to no penalty in the event that the same is not made.
    The work of preparing this report from the records, was purely mechanical, and could properly be delegated by the commissioners to any person they saw fit, if in their judgment the interests of the county would be promoted by so doing. Mechem on Public Officers, section 568, 863 and 865. The decisions in this state are not in conflict with the law as laid .down by Mechem upon this proposition.
    A public officer is not prohibited by statute from accepting employment and receiving pay for services outside, his official duties.

      General words in a statute are construed in reference to their subject matter. Aultman v. Seiberling, 31 Ohio St., 201.
    Words, ejusdem generis, as “any other,” are restricted to matters similar to those previously enumerated. Rutherford v. Railroad, 35 Ohio St., 559; Meyers v. Seaberger, 45 Ohio St., 234.

      Coyner & Poppleton, for the State.
    The attention of the court is called to the wording of the petition which is the same in all of the nine causes of action except as to dates, amounts and kind of service performed in this to-wit:
    That the said Lyman P. Lewis, did on the second Monday of September next after his election, 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 the commission of the wrongs hereinafter stated and that each and all of the said claims were duly presented and allowed by the commissioners of said county, all of said payments were made as compensation for services as such auditor.
    That the phrase “unlawfully received” used in each of said causes of action is a legal conclusion unsupported by any facts as is contended by plaintiff. We cannot agree, on the contrary we contend that each and all of the several causes state facts fully sufficient to support the proposition they severally contain. We maintain,

      First — That the drawing of a warrant upon the treasurer of the county in payment of any claim against the county is an official act of the county auditor, section 894, Revised Statutes, and to subject his official acts and use them in the payment of unlawful claims, which he is presumed to know is unlawful; we contend is a breach of his official bond. In all these causes of action it is alleged that the same Lyman P. Lewis as such auditor presented these several claims for alleged services rendered said county as auditor. Thus it will be seen that receiving payment on these claims which necessitates the performance by him of an official act was an open violation of section 1078, Revised Statutes, and therefore an unlawful act.
    Whether this is a faithful discharge of the duties of his office which is a provision of his bond is for the court to determine, but we contend that it is a disregard of his duties, section 1014, Revised Statutes, and that this cause is properly brought on the official bond. 32 Ohio St., 421/

      Second — That where a service for the benefit of public is required by law, and no provision for its payment is made it must be regarded as gratuitous, and no compensation can be enforced. 25 Ohio St., 13; 7 Ohio St., 237. But in the case at bar none of the services of the auditor can be regarded as gratuitous, for in addition to fees and compensation which are allowed him, he is allowed in addition thereto a salary based upon the population of the county, section 1069, Revised Statutes.

      Third — This demurrer being a general demurrer admits the facts in the petition 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 final. It is admitting the facts as charged in the petition as true that there was no authority of law for these fees, but that the board of county commissioners having duly passed upon and allowed them that there is no way of recovery, but by appeal as provided in section 896, Revised Statutes, but we do not think that said section applies to cases of this kind, but in cases in which the commissioners have authority to act. These were not claims against the county and no amount of judicial proceedings- upon the part of the commissioners could give them any force or legal significance. Besides who would appeal from the judgment of the commissioners. You could hardly expect the commissioners to appeal in this case nor the auditor when his claim has been allowed. He had his money, 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 a more dangerous doctrine could not be contemplated. The cases cited by the plaintiff upon this proposition are all cases in which the commissioners had unquestionable right to act upon the claims presented and we contend therefore are not applicable to the cause in issue.
   Spear, J.

The first entitled case was argued orally to the second division only, but both eases were submitted to and considered by the whole court.

In the case of Jones, auditor, but one question is made by the record, and that is made also in the other case. It is this: Is a county auditor entitled to extra compensation from the treasury of the county for services in making for the commissioners the report of their financial transactions, required by section 917, Revised Statutes?

Provisions of the statutes bearing on the subject are: “Section 917 — The county commissioners, annually on or before the third Monday in September, shall make a detailed report in writing to the court of common pleas of the county, of their financial transactions during the year next preceding the time of making such report. ” In case of neglect to make such report, the commissioners are subject to a fine of one hundred dollars, to be enforced by the prosecuting attorney.

“Section 1021. The auditor by virtue of his office, shall be secretary of the county commissioners, except as otherwise provided by law; he shall aid them, when requested, in the performance of their duties; he shall keep an accurate record of all their proceedings; and shall carefully preserve all documents, books, records, maps and papers, to be deposited and kept in his office.”

Section 850. The clerk shall keep a full and complete record of the proceedings of the board, and a general index thereof. He shall read the minutes of meetings; he shall certify to the record, etc.

Sections 1069 and 1070, provide a salary to county auditors, from eight hundred dollars to forty-four hundred, depending upon population.

Sections 1071, 1072, 1073, 1074, 1075, and 1076, provide further compensation for services in special matters therein enumerated, but none of them relates to the subject of inquiry here.

“Section 1077. All claims for services of the county auditors, which are payable from the county treasury, shall be made out in detail according'to the rates named in the foregoing sections, and shall be presented to the county commissioners, who, after being satisfied that the labor has been performed, shall allow said bill or claim and cause the same to be spread upon the minutes of the board;- and, after being so allowed, the county auditor is authorized to draw his warrant upon the treasurer of the county, for the amount of the bill or claim so allowed.”

“Section 1078. 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 fee or compensation, either as clerk of any board, or for any services rendered by him.”

“Section 894. No claim 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 person or tribunal, in which case the same shall be paid upon the warrant of the .county auditor, upon the proper certificate of the person or tribunal allowing- the same; but no public money shall be disbursed by the county commissioners, or any of them, but the same shall be disbursed by the county treasurer, upon the warrant of the county auditor, specifying the name of the party entitled to the same, on what account, and upon whose allowance, if not fixed by law.”

While these sections may be somewhat obscure as to some features of the law, two propositions appear to us to suggest themselves as rational deductions: 1. That there is no provision on which the auditor can found a valid claim for payment from the county treasury for making- the commissioners’ report. 2. That there is no authority given the commissioners to contract for the making. of their report and order the services paid from the treasury of the county. When to the foregoing we have added the rule, well established in this state, as held in Debolt v. The Trustees, 7 Ohio St., 237, that “an officer whose fees are regulated by statute, can charge fees for those services only to which compensation is bylaw affixed,” and the corollary, as held in Anderson v. Commissioners, 25 Ohio St., 13; that “where a service for the benefit of the public is required by law, and no provision for its payment is made, it must be regarded as gratuitous, and no claim for compensation can be enforced,” which rule is more fully stated, but to like import in Strawn v. Commissioners, 47 Ohio St., at page 480, the conclusion inevitably follows, that the auditor’s services in making the report for the commissioners must be deemed, if not gratuitous, at least satisfied' by the salary attached to bis office, and that he is not entitled to extra compensation for such services, payable out of the county treasury. And this conclusion follows, whether the sections quoted impose the duty on him to make such report, or devolve it primarily upon the commissioners, the duty of the auditor being only a general one to aid them, a question which it is not necessary to decide in order to dispose of the case.

A question much argued, whether or not there can be a recovery back by the commissioners, we think does not arise upon the record in this case, because of the agreement of the parties embodied in the submission, that if the allowance is found not to be regular and proper under the law, judgment is to go against the defendant.

In the case of Lewis et al. v. The State, the demurrer raises not only the question as to the right of the auditor to be compensated for the services stated, but as to the sufficiency of the pleading in other respects, and especially whether there is sufficient allegation of the illegal character of the acts of the auditor which form the ground of complaint. The rule is well understood that it is only facts which are well pleaded that are admitted by a demurrer, and that, in general, an averment that a defendant unlawfully received money on an account, would be insufficient. But we have here a showing that the party complained of was a county auditor; that the alleged services which formed the ground of the claim, appeared to have been rendered in his official capacity, and were charged against the county and payment for them received from the county’s treasury on the allowance of the commissioners. It would seem that, under our liberal rules respecting the construction of pleadings, enough is averred to raise the legal question whether such obtaining of the county’s money by a county officer is or not lawful, and if unlawful, that judgment might property follow, if otherwise the action could be maintained. That is, concede that the word “unlawfully” imports a legal conclusion rather than an allegation of fact, and adds nothing to the pleading, and concede farther, that the services charged had been rendered and the charge as to amount was reasonable, and that the claim had been allowed by the commissioners, still was it, in view of the statute law, the law of which the court must take notice and which it must apply to the facts, a lawful receiving of the county’s money, or not? The petition was, we think, in this respect, sufficient as against a general demurrer.

In considering the substance of the first, second, third, fourth, fifth, sixth, seventh and ninth causes of action, we have examined all the citations, statutory and other, given in the briefs, with many additional, and are satisfied that the statutes furnish no support for the auditor’s charges set out in these causes of action. The claims challenged by these allegations of the petition, are founded upon charges for services in matters, some of which belong among the duties of other officers, and some, although among the duties of the auditor, are not proper subjects of extra charge against the county. As to the former, the holding of the courts below is justified on the ground, that, ordinarily, an officer cannot ask pay from the county for performing services which belong to another officer to perform. As to the latter, it is plain that no extra compensation is provided by statute, at least, not clearly so, and the holding rests satisfactorily upon the ground, heretofore stated, that fees are not allowed upon an implication, and where the duty is enjoined and no compensation is allowed, the presumption is that the service is intended to be gratuitous, or that compensation for it is to be regarded as covered by fees in other matters, or by salary, or both. Debolt v. Trustees, supra; Anderson v. Commissioners, supra; Strawn v. Commissioners, supra.

The sujeet matter of the eighth cause has been disposed of in discussing the other case.

We now reach the inquiry as to the effect of the allowance by the commissioners, and the question of recovery against the auditor and his bondsmen. It is urged that as a condition of avoiding the conclusive effect of the commissioners’ allowance, there must be shown either fraud or mistake, and neither is averred. This claim seems to rest upon the idea that the board of commissioners is practically the county, and that its official acts necessarily conclude the county. The assumptiorr is fallacious. The legal status of a county and the relation of the commissioners to it, are well defined in Commissioners v. Mighels, 7 Ohio St., at pages 119 and 120: “Counties are local subdivisions of a state created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent or concurrent action of the people who inhabit it; * * * a county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. * * * The idea that the board of county commissioners is the agent of the county, or of its people, is prominently advanced and pressed on our attention. That board is, in some sort, the agent of the county, it is true, inasmuch as it alone is authorized to sue and be sued In respect to contracts growing out of the county organization. * -x- * p>ut, it is said, the members of the board of county commissioners are chosen by the electors of the county, and hence the board is to be regarded as the agent of the county for whose torts in the performance of official duties the county ought to be responsible. True, the people of the county elect the board of county commissioners; but they also elect the sheriff and treasurer of the county. Are the people of the county, therefore, responsible for the malfeasance in office of the sheriff, or for the official defalcations of the county treasurer?”

But, it is insisted, the board of commissioners is a body corporate, and whether it is treated as the county or not, it stands in place of the county as to its acts relating to the public; that, besides, when it sits to act upon claims against the county its functions are judicial and that, appeal being provided, that is the remedy for one aggrieved by its action. If we concede, as we may, that the board is, in a limited way, and for special purposes, a body corporate, that is, a quasi corporation, and-farther, that it-acts in a judicial, or quasi judicial capacity, and that when it adjudicates a claim which it is authorized to consider, appeal is the remedy, still we are at the threshold of the inquiry, for the ultimate question is one of power to act in this particular matter.

“A grant of power to such a corporation must be strictly construed, and when acting under a special power, it must act strictly on the conditions under which it is given.” Treadwell v. Commissioners, 11 Ohio St., at p. 190. The grant of power to commissioners to pass upon claims, is given in sections 1077 and 894, heretofore quoted, and is a very narrow one. The former section is to the effect that all claims for services of the auditor, which are payable from the county treasury, shall be made out in detail according to the rates fixed by statute, and presented to the commissioners, who, if satisfied that the labor has been per. formed, shall allow the bill, etc., and then the auditor is authorized to draw his wa rrant. That is, the right to present depends upon whether the claim be one the rate of which is fixed by statute, and upon whether the claim for some amount, may be legally paid from the county treasury. Both conditions must concur. But if the rate is not so' fixed, or if the claim is not legally so payable, no right to present it is given, and there is force in the proposition, that if no right to present be given, then no power to allow could be implied, and if no power to allow, then the attempted allowance would be a nullity. Section 894, which regulates the allowance of claims other than those of the auditor, is to' the effect that, 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, no claim against the county shall be paid otherwise than upon the allowance of the county commissioners, upon the warrant of the county auditor. The word “claim,” as used in these statutes, we think naturally imports a matter of charge which is based upon some, statute, or grows out of the performance of some authorized contract, wherein the inquiry of the commissioners as to the auditor, is confined to whether or not the service was rendered, and, as to other claims, to determine the amount due, as contrasted with a mere demand unsupported by law. Respecting the.latter class of demands, it would follow that the board is without authority to consider them. That is to say, referring to claims other than those of auditors, if the amount due is fixed by law, or is to be fixed by some other tribunal, then the commissioners may not act, but if the amount be not fixed in one of the other ways enumerated, then, the demand being one which may form the basis for a claim, the commissioners may fix the amount; it is the amount only which they determine; and in respect to claims by auditors, coming under section 1077, the commissioners, if satisfied that the services have been rendered, must allow the claim. The question is, has the auditor done the work? If no, refusal; if yea, allowance; but in all cases conditioned that the demand shall have a legal basis. This is very far from authority to order payment of a demand which cannot have, for any amount, the sanction of law. This construction appears to give reasonable effect to a succeeding section (896) respecting appeals, while a different construction would, we think, defeat the spirit of that section. A party aggrieved may appeal to the common pleas within fifteen days upon giving written notice to the commissioners, or the auditor. An auditor whose demand had been ordered paid in full, as in the present case, would hardly agitate the question of appeal, and no one else could. So that, if the commissioners should entertain a demand wholly unfounded in law, and allow it, and their action upon such unfounded claim should be treated as final unless appealed from, the people’s money would be gone and they without remedy. On the other hand, if the commissioners should refuse to act on the ground of want of power, and a party feel aggrieved at the refusal, mandamus would test whether that refusal was justified or not. Ihe State ex rel. Gerke v. Commissioners, 26 Ohio St., 364. If the decision of the commissioners in refusing to act should be sustained, that would end the controversy, while if overruled, and that body ordered to pass upon the case, the party, if aggrieved at the action taken, might then appeal. This construction protects the interests of the people, as well as those of private parties. Nor does it conflict with the doctrine announced in Shepherd v. Commissioners, 8 Ohio St., 354, cited in argument. In that case, the claim of the recorder, the subject of controversy, was for making indexes, and the point decided is, that the recorder could not bring1 assumpsit against the county, but his only remedy was by appeal from the adverse judgment of the commissioners. But the recorder’s claim was based upon a contract which the eommisioners had authority to make. He had, therefore, a valid claim for some amount, and the jurisdiction of the commissioners to pass upon it is unquestionable.

Giving this construction to the statutes, we conclude that the board, being a creature of statute, an agent whose powers are not general, but special, should be held to represent the county in respect to its financial affairs, only in such matters as are distinctly provided by statute. Authority is thus given to it to entertain and pass upon claims, which, for' some amount, may be the subject of legal demand against the county. Its jurisdiction being thus necessarily limited, is not of such a character as to permit a finding of jurisdiction by the board to be conclusive of the fact. Speaking more specifically, the board may properly pass upon a question whether in fact a given service has been rendered, and upon the amount which ought to be paid upon an unliquidated claim, where in law a claim may exist, i. e. where it has a legal basis on which to stand. But it is wholly without authority to sanctify a demand illegal because of’ being upon a subject which can admit of no claim, and thus give away the people’s money. It can no more do so than can any other agent bind his principal by acts unauthorized because without the scope of his authority.

From this it would follow that recovery- does not necessarily depend upon an allegation and showing, as ground of recovery, of fraud or mistake. True, it would be natural to assume that the board, when it approves a wholly unfounded claim, acts under a mistake of some kind. But this we think not essential, inasmuch as the weakness arises not so much from a mistaken understanding of facts, or indeed a mistaken application of law, as from want of power to act at all. The cases at bar are essentially different in their facts, and we think in the principle of law involved, from that of Commissioners v. Noyes, 35 Ohio St., 201, cited in argument. There the case made by petition and answer, left the inference that the contract for the work done for the county was within the power of the commissioners, and legal, and the holding is, that there could be no recovery back at the suit of the commissioners without a showing of fraud or mistake. Here the accounts presented are found to be wholly illegal, and beyond the power of the commissioners to adjudicate. A number of cases have been cited where acts of commissioners, unauthorized when performed, are sustained on the ground of estoppel. No comment is necessary upon these adjudications, as no estoppel ’ is urged in either of the eases at bar.

But it is insisted that each presentation was simply a personal application for pay for personal services, and the money was drawn by virtue of the allowance of the commissioners after due submission and approval by the board, and that the drawing of the money in each case then became a personal, and not an official, act, and hence was not a violation of the official bond. We have already found that the several claims were all illegal; that is, there was no warrant of law for any claim whatever in either instance. This fact it must be presumed the auditor knew. Whether in fact he knew or not, it was his duty to know. The subject related to his own duties and his own compensation. He could not be heard, in an inquiry of this character, to deny knowledge as to what the law provided in those respects, and it is quite the same, as matter of legal conclusion, for the purposes of the present case, as though the facts disclosed actual knowledge on his part of the unfounded character of his demands. The proposition that the drawing of money from the county treasury, by a county auditor, upon his own warrant, on a claim in his own favor, known by him to be illegal, for alleged services rendered the county, is a matter merely of individual action, and not a disregard of official duty, is at least a startling one. It appears to be based upon an attempt to distinguish between the man as an individual, and the man as an officer. The distinction cannot hold. The petition declares that Lewis received the money as auditor. But is there not sufficient showing, aside from this, that the acts were official acts? The money being drawn upon the auditor’s official warrant, why is not that an official act? We think it is. It is so held in Cricket v. The State, 18 Ohio St., 9. As said by White, J., in the opinion: “The warrant purports to be an official act; it was drawn under the color of office, and constituted the means by which the money was obtained from the treasury.” See, also, to the same purport in a case involving the bond of a county treasurer, Tlve State v. Kelly, 32 Ohio St., 421. If the claim in his favor be unfounded, the drawing of the money upon it would seem to be a violation of official duty at common law; but it is in terms made unlawful by section 1078, in this distinctanguage: “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.” In the face of this provision, how can it be said that the acts complained of are not malfeasances? If they are, they .clearly come within the condition of the bond. Cricket v. The State, supra. That the legislature of this state, having-required, as a condition of holding office by certain officers, that they give bond for the faithful performance of duty, would then intentionally direct a course of procedure which will permit such officers, in their official capacity and by their official warrants, to illegally draw money from the public funds, for' their own use, is equivalent to saying that a principal, before employing an agent, would require him to give security, but would intentionally so frame the bond as to afford protection to all the world save the principal himself, and is past belief; nor do we think that body has done so inadvertently. Suppose, say counsel, in support of the proposition that the act of drawing the warrant and the money is not a violation of the bond, that an ex-auditor should present an unauthorized claim to the commissioners, which being allowed, a warrant is drawn by his successor on the treasury for the amount. Would the auditor, by drawing such warrant, violate the condition of his bond? Well, we are not called on to decide this question, for we have not that ease. .That would be a situation where the auditor presumably relied upon the order of the commissioners without knowledge of its illegality and in a matter in which he had no personal concern or interest. Our case is one where the auditor has acted from the inception of the transaction on his own volition in a matter which on its face concerns his own official pay, and the warrant therefor, drawn in his official capacity by force of the statute which defines the powers and duties of his office, is unauthorized at best, and in defiance of a statute which says it shall be unlawful for him to charge or receive any compensation for such alleged service.

If this conclusion be correct, then an action is clearly maintainable against both the auditor and the bondsmen by the prosecuting attorney. Section 1131, Revised Statutes, provides for the appointment by the court of common pleas of a committee to examine the books and papers in the office of the auditor, and for the making to the court of a report of their proceedings, and the results of their examination, while section 1133, makes it the duty of the presecuting attorney, in case the report shows a breach of the bond, to forthwith commence an action on the bond of the delinquent officer. The report of such committee is the basis of the action here, and we regard it as'well founded.

Judgments affirmed,.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    The State ex rel. Lewis v. Kinney, Secretary of State, Etc.

      Party device on ballot — Requirements for — Duty of state supervisor of elections — Section %966-%5, Revised Statutes.

    The state supervisor of elections is not required by section 12 of the Australian Ballot law (Bates’ Revised Statutes, section 2966-25), to cause to be printed on the ballots to be used at an election, a device selected and certified by a state convention which did not represent a political party that at the next preceding election polled at least one per cent, of the entire vote cast in the state: nor a device certified in nomination papers for a ticket nominated by that method.
    (Decided December 14, 1897.)
    Mandamus.

      Graham, Deuwell, for relator.

      F. S. Monnett, Attorney-General, and Daniel J. Ryan, for defendant.
   By the Court:

It is sought by this proceeding to compel the secretary of state, in his capacity of state supervisor of elections, to instruct the deputy state supervisors of elections to have the ballots for the general election of November 2, 1897, so printed that the ticket of the Negro Protective party (so-called), shall have at its head, as its emblem or device, a portrait of Abraham Lincoln. It appears from the petition that the party named did not poll one per cent, of the vote cast in the state at the preceding general election, and that the ticket wa.s nominated by nomination papers filed with the secretary of state. On the ticket the rela/tor was named as the candidate for Governor, and other candidates were nominated for the other • state offices to be filled at the same election. The petition alleges, that previous to the nominations made as above stated, the candidates were selected by a convention of electors, which, by resolution, adopted the emblem or device mentioned, and certified the same to the defendant, who refused to give instructions to the deputy suspervisors to cause the device to be printed on the ballots.

The claim of the relator is, that the duty which it is sought to compel the defendant to perform, is enjoined on him by section 12, of the Australian Ballot law (being section 2966-25, Bates’ Revised Statutes), which provides that: “If the certificate of nomination of any state convention shall request that the figure or device selected by such convention be used to designate the candidates of such party on the ballots for all elections throughout the state, such figure or device shall be so used until changed by request of a subsequent convention of the same party. Such device may be the figure of a star, an eagle, a rooster, a flower, a plow, or some such appropriate symbol; but the coat of arms or seal of the state, or United States, the national flag, or any other emblem common to the people at large, shall not be used as such device.”

The language of this section, “the certificate of nomination of any state convention,” clearly imports that the certificate referred to must be that of a state convention authorized to make nominations of, candidates for state officers. The only state convention which, under the provisions of the ballot law is authorized to make such nominations, is one that is the representative.body of a political party, “which at the next preceding general election, polled at least one per cent, of the entire vote cast in the state. ” Section 6, of the Ballot law, Bates’ Revised Statutes, section 2966-18.

By the requirements of the law all nominations for state offices, except those made in accordance with the above section, must be made by nomination papers signed by the requisite number of electors, and filed with the secretary of state in the manner and time prescribed by the law. The distinction between these two methods of making nominations is clearly marked, and preserved throughout the law. And there appears to be- no authority for selecting or using a device for a ticket nominated by nomination papers. The petition shows that the relator, and the candidates on the ticket upon which his name appeared, were nominated by the latter method. And though a convention of electors was held, at which the candidates on that ticket were first designated, and by which the device it is sought to have placed at its head was chosen, that was not a convention authorized by the law to make nominations, it being- a self constituted body, merely, and not the representative of a political party which had east the requisite vote at the preceding election to entitle it to make nominations by convention. The state supervisor of elections was therefore not required to cause the device to be printed on the ballots.

Writ refused and petition dismissed.


text:
    The State of Ohio v. Ruedy.

      Justice of peace reversed, by common pleas — Decision of latter subject of exception to Supreme Court, when — Law of adulteration of food.

    1. A decision of the court of common pleas reversing a sentence by a justice of the peace may be the subject of an exception by the prosecuting attorney for the purpose of presenting it to the Supreme Court to obtain a decision for the government of similar cases.
    2. The introduction of coloring' matter into oleomargarine, is the adulteration of an article of food punishable by law, and of such offense a justice of the peace has jurisdiction.
    (Decided December 14, 1897.)
    Exception to a decision of the Common Pleas of Portage county.
    John Ruedy was tried before a justice of the peace' of Portage county, and found guilty of selling oleomargarine which contained coloring matter, and was sentenced by the justice to pay a fine of $50.00, and the costs of prosecution.
    He filed a petition in error in the court of common pleas for the reversal of the sentence, and the court of common pleas decided “that the justice had no final jurisdiction to try said defendant for the offense charged in the affidavit, nor to render a final judgment, or assess him with the payment of fine and costs of said proceeding,” and reversed the judgment. To that decision of the court of common pleas, the prosecuting attorney excepted, and presents his bill of exceptions here, under sections 7305-8 of the Revised Statutes.

      D. L. Sleeper, for plaintiff in error.

      J. A. Smith and I. T. Siddall, for defendant in error.
   By the Court:

A decision of the common pleas reversing a sentence imposed by a justice of the peace, may be the subject of an exception by the prosecuting attorney, with a view to presenting it to the Supreme Court to obtain a decision to determine the law to govern in similar cases under sections 7305-8 of the Revised Statutes. The State v. Kelly, 54 Ohio St., 166; State v. Hutchinson, 55 Ohio St., 573; State v. Hutchinson, 56 Ohio St., 82.

Section 3718a, of the Revised Statutes, confers upon justices of the peace, jurisdiction “in cases of violation of the laws to prevent adulteration of food and drink, the adulteration and deception in the sale of dairy products, ” etc.' Paragraph b of section 3, as amended April 22, 1890, (O. L., vol. 87, p. 248) now section 4200-6, Revised Statutes, provides that an article of food shall be deemed to be adulterated “if it is colored,” etc. Since oleomargarine is an article of food, the justice of the peace had jurisdiction. Kxception sustained.


author: By the Court

text:
    Bodi et al. v. The Winous Point Shooting Club.

      Right of navigation and fishing in navigable waters.

    The public has a right of navigation and fishing in the navigable waters of the open bays of Lake Erie, in this state. Sloan v. Biemiller, 34 Ohio St., 492, followed and approved.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Ottawa county.
    This action was brought by the defendant in error against the plaintiffs in error, to enjoin them from fishing and hunting in waters which are claimed by the shooting club to lie on both sides of the Sandusky river and Mud creek, southwest of Sandusky bay. Henry Bodi, and those joined with him in the action claim that those waters constitute an open navigable bay in which the rights of navigation and fishing ar vested in the public. There is a long finding of facts, followed by conclusions of' law. The first and second conclusions of law are as follows:

      “First — That the body of water claimed by the defendants to be a continuation of the Sandusky bay is not such continuation of said bay, but the same are waters of the Sandusky river and Mud creek. The said Mud creek and Sandusky river, flow through the lands described in the plaintiff’s petition, and that said Mud creek empties into said Sandusky river upon the lands of plaintiff described in its petition, and from this junction, said Sandusky river flows easterly and empties into the Sandusky bay at a line commencing at Slade’s, or Slade’s Point, in the southwest quarter of section 13, town 6, range 16, in Ottawa county, Ohio, and running thence east of south, to the east end of Eagle Island, in section 24, lying south of said section 13, and running thence west to south to a point called “South Point,” situated in about the center of the north west quarter of section 25, lying south of said section 24.

      Second — That all those waters lying west of said line drawn from “Slade’s or Slade’s Point,” toa point at the east end of Eagle Island and thence to “South Point,” covering the lands described in the plaintiff’s petition, are owned by the plaintiff, and it is entitled to every beneficial use and enjoyment thereof, and the defendants have no lawful right to enter upon any of said waters, without the consent of the plaintiff for any purpose whatever, except to navigate said waters.”
    The circuit court acted upon these conclusions of law, and enjoined the defendants below from fishing and hunting in said navigable waters. Thereupon the plaintiffs in error filed their petition in this court, seeking a reversal of the judgment of the circuit court. -

      George A. True and C. I. York, for plaintiff in error.
    Defendant in error claims the exclusive right to take fish and other wild animals in, upon and over the twelve square miles of water in controversy in this case, by virtue of the law of riparian ownership; it claims that this great bay is a part of Muddy creek and the Sandusky river, and that this sporting club has the exclusive right to the wild animals because it owns the land on the sides of the bay and therefore owns to the middle.
    The first question then is, what is a river?
    Lexicographers have defined a river to be a “large stream of water flowing in a channel on land
      toward the ocean, a lake; or another river. ’ ’ Houck on Rivers, section 1, page 1.
    The' word is derived from the old French word “riviere” meaning a bank, a shore or rather a country on the banks of a river. Webster’s Diet., “River;” American Cyclopaedia, “River;” Houck on Rivers, section 2, page 1.
    Every river, be it public or private, has a bed, shore and bank. Gavit's Adm'r v. Chambers, 3 Ohio, 498; Howard v. Ingersoll, 13 Howard, 426; McCullough v. Wainright, 14 Penn. St., 171. A river is a running stream of water pent in on either side by banks, shores or walls. Every river consists of (1) the banks, (2) the bed, (3) the water. Gould on Waters, section 41, page 94; Angel on Watercourses, sections 3 and 4 and notes.
    The Sandusky river has no banks after passing through the marsh and emptying into Mud creek bay near Squaw Island. Between Squaw Island and the Sandusky bay, where the channel continues through Mud creek bay, there are no banks above water.
    A river iá said to be “pent in by walls or banks” and is thus contradistinguished from a sea or an ocean, which encompasses the land, rather than is encompassed by it. Woolrich on Sewers, 51; Livingston v. Morgan, 6 Mart. R., 19.
    A bank is defined to be a steep declivity rising from a river, lake or sea. Webster def. Bank Bouvier Law Dict; Thomas v. Hatch, 3 Summ., 178 Handley's Lessee v. Anthony, 5 Wheat., 374.
    If the shore borders on the edge of the water, it must extend outwards to the bank, and therefore cannot be the bank, which, in certain stages of the river, it separates from the water’s edge.
    A river then, consists of water, abed, and banks; these several parts constituting the river, the whole river. Chalker v. Deckman, 1 Conn., 481; Peck v. Lockwood, 5 Day (Conn.), 22; Stannard v. Hubbard, 34 Conn., 370; 8 Cush., 351; 20 Me., 357; 16 Peters, 410; 7 Wend., 272; Woolrich on Waters, 129.
    And this common law rule applies to Lake Erie and Sandusky bay and the waters that are made to flow inland therefrom by their egress and influence, and fishing and hunting in these waters is as open to the public as if they were subject to the ebb and flow of the tide. Sloane v. Biemiller, 34 Ohio St., 514; Hogg v. Beerman, 41 Ohio St., 81; State v. Company, 49 N. H., 250, S. C., 6 Am. Rep., 513; Wheeler v. Spinola, 54 N. Y., 377.
    It is an undisputed fact that the waters of Mud creek bay rise and fall with the waters of Sandusky bay which rise and fall with the waters of Lake Erie. The rule of tide waters being applicable to Lake Erie and Sandusky bay and all the waters which are made to flow inland therefrom by its egress and influence, why should not Mud creek bay be also open to the public for fishing and hunting ?
    The modern decisions of the Supreme Court are all holding that The Great Lakes are the same as !‘high seas.” U. S. v. Rodgers, 150 U. S., 1071, bottom number; Illinois Central v. People, 146 U. S., 387; June v. Purcell, 36 Ohio St., 396; Lamb v. Rickets, 11 Ohio, 311.
    Both of the common law rules being adopted in the state of Ohio, why should they not be followed strictly and thus prevent litigation at all points where the rules come together as they do between the Sandusky river and the Sandusky bay? Who owns the flsh that swim in the waters of Mud bay? Who owns the ducks, geese, frogs, turtles and other wild game that frequent the waters of the bay? The ownership of game is held by the sovereign authority in trust for all the people in the state. Magner v. People, 97 Ill., 320.
    There is no property in wild animals such as ducks, geese, frogs, fish, turtles, and other wild game until they are subjected to the control of man. 2 Kent's Com., 416; 2 Blackstone, 409; Eng. & Am. Encyc. of Law, vol. 8, page 1024; Parker v. People, 111 Ill., 588; Cooley on Torts, 435; Com. v. Chance, 9 Pickering, 15.
    And fish are like any other animals ferae natwrae, and in this region have always been regarded as open to capture by those having a right to be where they are captured. Molton v. Libby, 37 Me., 472; Packard v. Ryan, 144 Mass., 440. Sterling v. Jackson, 69 Mich., 518; Inst. 2, 1, section 12; 2 Blackstone Com., 410.
    The ordinance 1787, for the government of the Northwest Territory, of which our state is a part, provided that: “The ” navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of said territory as to the citizens of the United states, and those of any other state that may be admitted into the confederacy, without any tax, impost, or duty therefor.”
    It must also be remembered that this commerce then consisted mainly of fish and the skins of wild animals. It was an ordinance saving to the hunter and the fisherman the right to navigate these waters free of charge, and also preserved to him forever the right to hunt and fish upon them. Houck on Rivers, section 112.

      The right to fish in the waters of Mud creek bay carries with it the right to drive stakes into the soil, anchor boats, etc. Gould on Waters, section 20, page 41.
    So the right to take shell-fish which are imbeded in the soil is a part of the public right of fishery, and in the exercise of this right, the public may dig or rake the soil, whether the title in the land under the water is in the state, in the town, or private persons. Gould on Waters, section 20, page 42; Proctor v. Wells, 103 Mass., 216.
    Though the sea shore between high and low water mark be held as private property, the common right still exists to go there and fish and even to dig and take shell-fish. Preble v. Brown, 47 Maine, 284; Watson v. Sampson, 8 Cush., 347; Eng. & Am. Encyc. of Law, volume 8, page 28.
    Mud creek bay is navigable water connected with Sandusky bay. Waters which are navigable in fact are navigable in law. Hickok v. Hine, 23 Ohio St., 523; Barnard v. Keokuk, 84 U. S., 324; Barnard v. Hinckley, 10 Michigan, 458; Lorman v. Benson, 8 Mich., 18; Healey v. Joliet R. R., 2 Ill. App., 435; Burroughs v. Whitman, 59 Mich., 279, 285.
    We also claim that Ohio could not have granted the public rights of fishing and hunting away to private parties. Illinois Central R. Co. v. People, 146 U. S., 387.
    The state holds title to the bed of navigable waters like Mud creek bay upon a public trust, and no alienation or disposition of such property by the state which does not recognize and is not in execution of this trust is permissible. Pollard v. Hagan, 44 U. S., 3 How., 212(11:565); Den v. The Jersey Co., 56 U. S., 15 How., 436 (14: 757); Munford v. Wardell, 73 U. S., 6 Wal., 423 (18: 756);
      Weber v. State Harbor Comrs., 85 U. S., 18 Wal., 57; McCready v. Virginia, 94 U. S., 391; Barney v. Keokuk, 94 U. S., 324; Manchester v. Mass., 139 U. S., 260; Smith v. Maryland, 59 U. S., 18 How., 71; Hardin v. Jordan, 140 U. S., 371; Smith v. Rochester, 92 U. S., 463. McLennan v. Prentis, 85 Wisconsin, 427; Arnold v. Mundy, 6 N. J. L., 1.
    The state cannot sell them so as to deprive the public of their enjoyment. Miller v. Mundenhall, 8 L. R. A., 89; 19 Am. St. Rep., 219, and 105 Mass., 351.
    The state could not grant exclusive ownership of the submerged lands held by the state in trust for the public. Martin v. Waddell, 41 U. S., 367; 56 U. S., 15 How., 426; 20 Maine, 353.
    Grants by the crown must not impair public rights. Gould on Waters, 21; Hale De Jure Maris, C. 5, 6; 98 Mass., 41; 1 Wend., 237; 5 Sanford, 16; 60 N. Y., 56; Gould on Waters, 23; Mather v. Chapman, 40 Conn., 382.

      J. R. Bartlett; S. R. Harris and E. G. Love, for defendant in error.
    The only questions with which this court need concern itself are:

      First — Where, as. disclosed by the record, are the mouths of Sandusky river and Mud creek?

      Second — If the mouth of Sandusky river is to the eastward of the lands of the defendant in error described in the finding of fact of the circuit court, what are the rights of the defendant in error, it being the owner of the lands through which the Sandusky river and Mud creek flow?
    Mud creek bay, so-called, and the broad expanse of Sandusky river, answer all the requirements in the definition of a river. They are streams of water flowing in a particular direction and in regular channels between banks.
    Plaintiffs in error lay great stress upon the fact that Mud creek and Sandusky river spread out over a great expanse of low land and over-run their channel banks; but these facts have no significance in determining their character. Rice v. Ruddiman, 10 Mich., 137; State v. Gilmanton, 14 N. H., 477.
    Plaintiffs in error also emphasize the fact that during- heavy winds the waters of Mud creek and Sandusky bay, where they spread out over these low lands, rise and fall with the waters of Sandusky bay. But this has no significance at all in determining their character.
    These bodies of water being but the spreading out of a river and creek and the defendant in error having been found to be not only the owner of the land along the banks, but the actual owner by mesne conveyance from the government of the lands covered by these waters, the law of this state is so well settled it follows as a matter of course that it has the right to every beneficial use of said lands subject only to the public easement of navigation. Gavit v. Chambers et al., 3 Ohio, 495; Lamb v. Picket, 11 Ohio St., 311; Walker v. Board of Health, 16 Ohio, 540; Day v. R. R. Co., 44 Ohio St., 406; June v. Purcell, 36 Ohio St., 396; State v. Shannon, 36 Ohio St., 423.
   By the Court

That the rights of navigation and fishing go together in the lakes and navigable bays of this state, has been held by the court, and seems setted. Sloane v. Biemiller, 34 Ohio St., 492.

The navigable waters in dispute in this case, form part of a public bay and not parts of the Sandusky river and Mud creek; and the circuit court erred in holding otherwise upon the facts as found in the record. Being part of an open bay, the public has the rights of navigation and fishing in its navigable waters.

Judgment modified accordingly.


text:
    Layer Guardian, v. Schaber, Administrator.

      Notice of appeal — Common pleas to circuit court — Sections 5227 and 5228, Revised Statutes.

    1. als from the court of common pleas to the circuit court, are to be taken as provided for in sections 5227 and 5228, Revised Statutes, as to notice of appeal, and not as provided in section 6408, of said statutes.
    2. The notice of appeal must be entered on the records within three days after the judgment or order is entered on the journal.
    (Decided December 14, 1897)
    Error to the Circuit Court of Crawford county.
    The action in the court of common pleas, was one in which an appeal would lie to the circuit court. The plaintiff in error, plaintiff below, recovered a decree against the defendant in error, and at the close of the judgment entry, appears the following : ‘ ‘Thereupon came the defendant, and declared
    his intention to- appeal this cause to the circuit court.”
    In the circuit court, the plaintiff in error made a motion to dismiss the appeal, upon the following grounds:

      “First — Said appeal has not been perfected as required by law.

      Second — The appellant has not given any appeal bond.

      Third— The appellant has not given written notice to the court, as required by law, of. his intention to appeal said cause.

      Fov/rth — The appellant did not, within three days after the judgment was entered herein in the court below, enter on the records of said court notice of his intention to appeal.”
    The circuit court overruled the motion, to which exceptions were taken; and in the further proceedings, judgment was rendered in favor of the defendant below. Thereupon plaintiff below filed his petition in this court seeking to reverse the judgment of the circuit court.

      Edward Vollrath, for plaintiff in error.
    The circuit court erred in overruling the motion of the plaintiff to dismiss the appeal. Revised Statutes, sections 5227, 5228, 6408.
    The appellant in this case was acting in a fiduciary capacity; he gave no appeal bond, and gave no written notice of his intention to appeal. The record discloses neither bond nor notice. Hence we maintain the appeal was never perfected and should have been dismissed. The court cannot appeal the case for the appellant. The written notice alone dispenses with the bond, under the above section — in the absence of a bond, a written' notice must be given, and in absence of such written notice, a bond must be given. The statute must mean this or it means nothing. Absence of bond will vitiate the appeal. Steinbarger's Admtrs. v. Steinbarger, 19 Ohio, 106; Thomas, Admtr., v. Moore, 52 Ohio St., 200; 29 Ohio St., 155.
    When a statute gives a right, which did not exist at common law, and at the same time points out a specific method by which the right can be asserted, that method must be strictly pursued. Cole v. Muscatine, 14 Iowa, 296; Moore v. White, 45 Mo., 206; Green v. Bailet, 3 N. H., 33; Wait’s Acts and Def.’s, volume 2, page 109.
    The law allowing appeals must be followed; and if the law is not followed the appeal is not perfected. Bradford v. Watts, Wright, 495.
    Finley, Beer & Bennett and J. C. Tobias, for defendant in error.
    If' the defendant is the duly appointed and qualified administrator of WilliamPfleiderer, late of said county of Crawford, then he has given bond as required by section 5996, Revised Statutes.
    Having given bond in his trust capacity he was not required to give bond and security to perfect an appeal of his case from the court of common pleas to the circuit court. Section 5228, volume 89, O. L., 148. The appellant was not required by law to give written notice to the court of common pleas of his intention to appeal his cause to the circuit court. Section 5227, volume 89, O. L., 148.
    Appeals by a party in a trust capacity, under section 6408, shall be allowed upon written notice to the court of his intention to appeal within the time limited for giving bond.
    The method of appealing from the court of common pleas to the circuit court at the present time does not differ materially from the practice in vogue ever since 1831. Then appeals were allowed from the common pleas to the Supreme Court upon notice entered on the journal of the court of common pleas, at the judgment term, of the intention to appeal, and the filing of an appeal bond within thirty days after close of the term. 29 O. L., 78.

      Then, as now. administrators who had given bond in this state could prosecute appeals without giving bond. 29 O. L., 241-2. Roberts, Executor, v. Wheeler, Wright’s Reports, 697.
    If the defendant gave notice, the presumption is he gave rhe notice required by law.
    To say he did not give notice is to contradict the record.
    The circuit court found that the motion to dismiss the appeal was not well taken.
    . No bill of exceptions was allowed showing what evidence was offered to sustain or against sustaining the motion to dismiss the appeal. A revisory court never presumes that an inferior tribunal has erred. The presumption is that it has not. Until the contrary is shown by the record every court is presumed to have acted and decided correctly. Wagers v. Dickey, 17 Ohio, 440; Mathis v. McCord, Wright’s Rep., 647; Bethel v. Woodworth, 11 Ohio St., 397, and 27 Ohio St., 598.
   By the Court:

The defendant in error, was sued as administrator, and the petition averred that he was the duly appointed and qualified administrator of the estate in question. Being such administrator, and having given bond as required by law, and appealing in the interest of the trust, it is con-' ceded that it was not necessary to give an appeal bond in order to perfect his appeal from the court of common pleas to the circuit court. But it is urged by the plaintiff in error, that, in order to perfect such appeal, he must give written notice to the court of his intention to appeal, within the time limited for giving bond, as provided in section 6408, Revised Statutes. The defendant in error claims that section 6408 applies only to appeals from probate courts, and that appeals from the court of • common pleas to the circuit court are provided for by sections 5227 and 5228, Revised Statutes.

The written notice of an intention to appeal under section 6408, is to be given “within the time limited for giving bond,” which is twenty days,

■ while the notice provided for in section 5227, must be entered on the records within three days after the judgment shall be entered. Both sections can. therefore not apply to the same appeals. Clearly, section 5227 applies to appeals from the court of common pleas to the circuit court, and section 6408, applies to appeals from the probate court to the court of common pleas, and it may also apply to appeals from other inferior courts or tribunals.

Said section 5227, provides that: “A party desiring to appeal his cause to the circuit court, shall, within three days after the judgment or order is entered, enter on the records notice of such intention.” This means that the notice of appeal must be given within three days after the judgment or order is entered on the journal. In this case, the notice of appeal appears at the close of the journal entry, and was therefore given at the time the judgment was entered without waiting three days. The notice is sufficient in form and substance, and was entered on the records within the time provided by the above section, and therefore, the circuit court did not err in overruling the motion to dismiss the appeal.

Judgment affirmed.


author: Burket, C. J.

text:
    Higgins v. Higgins et al.

      Descent of real property — Legal title and equitable interest united, when.

    In determining questions as to the descent of real property, regard is had to the legal title only ; and where the legal title is acquired by purchase, and an equity in the property by inheritance, the legal title and equitable interest at once unite, and upon the death of the owner, the descent of the property will be cast as an estate which came by purchase.
    (Decided December 17, 1897.)
    Error to the Circuit Court of Wyandot county;
    John Higgins verbally agreed with his son James, to sell and convey to him a tract of land in Wyandot county, containing about two hundred acres, for the sum of about six thousand dollars, to be paid by James to his father, and upon full payment being made, the father agreed to make and deliver to the son a deed for the land. Possession was delivered to the son, and he made valuable and lasting improvements. The father signed and acknowledged a deed to James for the lands, but retained possession thereof, and the same was never delivered, and it was not intended to be delivered until the balance of the purchase money should be paid. James, the son, died intestate in 1878, still owing his father two thousand, two hundred dollars, of the purchase money. James left surviving him, Josephine Higgins, his widow, and Darlton Higgins, then an infant, his only child and heir at law. He also left surviving him, the defendants in error, Ransom Higgins, his only brother, andLovina Wonder, his only sister.
    After the death of James Higgins, the guardian of his son. Darlton, brought an action in the court of common pleas against John Higgins,-the father of James, to compel a conveyance of the land to Darlton, and the court found that there was still due and unpaid, the sum of two thousand, two hundred dollars, of the purchase money, and “ordered and adjudged, that within ten days from the rising of this court, the said John Higgins, convey said real estate to the said Darlton Higgins, in fee simple, subject to said dower estate, by a good and sufficient deed, and that in default thereof, this decree operate as such conveyance, and that within thirty days from the rising of this court, the said plaintiff pay the said John Higgins, the said sum of two thousand two hundred dollars, and interest thereon from the date of this decree,” and awarded execution.
    The guardian of Darlton Higgins, sold forty acres of the land, under proceedings in the probate court, and out of the proceeds of the sale, paid John Higgins, the remainder of the purchase money, $2,200.00 and interest, but John, the grandfather of Darltou, never conveyed the land by deed, but allowed the decree of the court to operate as a conveyance of the land.
    In the year 1890, Darlton Higgins died intestate, leaving surviving him his mother Josephine Higgins, but no widow, child, brother, or sister, either of the whole or half blood. His mother remained in possession of the premises, and claims that the lands came to Darlton by purchase and ascended to, and vested in her at his death, under the statute of descents, and she brought her action against the defendants in error, to quiet her title. The defendants in error, the brother and sister of James Higgins deceased, claim that the lands came to Darlton Higgins by descent from Ms father, James Higgins deceased, and that Josephine, the widow of James, has only a life estate in the lands, and that after her death, the lands will belong to the defendants in error in fee, under the statute of descents.
    The circuit court, on appeal, found in favor of the defendants in error, and quieted the title in them, subject to the life estate of Josephine. Thereupon, Josephine filed her petition in error in this court, seeMng to reverse the judgment of the circuit court.

      T. E. Grissell and Beer, Bennett & Monnette, for plaintiff in error.
    If Darlton Higgins acquired title to.the real estate in question bv descent, then the decree of the circuit court should be affirmed. If he acquired his title by purchase, the decree of the circuit court should be reversed and this court should render a decree for the plaintiff quieting her in her title.
    Both plaintiff and the defendants claim title by descent from Darlton Higgins, and both concede that he died seized in fee simple, subject to the dower estate of the plaintiff.
    The plaintiff claims that the title of Darlton Higgins came to him by purchase. The defendants claim that it came to him by descent.
    It could not come to him both by descent and by purchase. Persons claiming- as heirs to an estate cannot trace their title to the same estate partly under section 4158, Revised Statutes, and partly under section 4159, Revised Statutes. Brower v. Hunt, 18 Ohio St., 211.
    If Darlton Higgins acquired his title, or any part of his title, from John Higgins by deed, or by a decree for a deed, and for a consideration'to be paid in money, then, for the purposes of this action, the title of Darlton is one by purchase. Patterson v. Lamson 45 Ohio St., 90; Foster’s Appeal, 74 Pa. St., 391; Armington v. Armington, 28 Ind., 74.
    It is plain that the interest of James in the land at the time of his death was not- an estate in fee simple. The legal title was not in him, and he was not entitled to it for the reason that he had not paid the purchase price for it.
    The object of the suit in the court of common pleas, on the part of Darlton Higgins, was to obtain a title and estate by purchase — not from James, his ancestor, but from John Higgins, in whom the same was vested.
    James died having a limited interest in the land, but the fee was in John.
    But the legal title, the fee simple, which had never passed from John, which remained in him after the death of James, and which he was under no-obligation to convey to James during his lifetime, nor to his heirs after his death, passed to and became vested in Darlton by the decree of the court of common pleas upon the payment by him of the purchase money.
    This estate acquired by Darlton from John came not by descent, devise or deed of- gift, and when it became vested in him, the limited interest in the land, which passed to him by inheritance at the death of his father, was drowned or merged in it, upon the principle, that “omne majus oontinet in se minus.” 1 Cruise on Real Property, 19.
    Where legal and equitable estates meet in the same person, the equitable merge in the legal.
      Wade v. Paget, 1 Bro. Ch., 364; Goodright Lessee v. Wells, Doug., 771; Selby v. Alston, 3 Ves., 339; Nicholson v. Halsey et al., 1 Johns. Ch., 417; Strembel v. Martin et al., 50 Ohio St., 495; James v. Morey et al., 2 Cow., 246; 4 Kent’s Com., 101-3; 2 Pomeroy’s Eq. Jur., section 787; Welsh v. Phillips, 54 Ala., 309; Walker’s American Law, 397.
    An ancestor is one from whom the estate was inherited by right of blood. Lathrop v. Young, 25 Ohio St., 464; Shepherd v. Taylor, 3 Atl., 382.
    The title of Darlton Higgins came to him directly from John Higgins, a living vendor. Freeman v. Allen, 17 Ohio St., 529 Blackstone. 2 Com. 201. Wendell’s Edition.

      A. F. P. & P. A. Blackford, for defendants in error.
    Darlton Higgins, by his guardian, claimed title and right to this land by descent from his father, James Higgins, deceased. He alleged the contract by his father for the purchase and payment of the consideration, except the balance named and that the deed had been executed, but not delivered, John Higgins, the father of James, retaining the same as security for this unpaid balance.
    The right of Josephine Higgins, mother of Darlfcon, to dower was conceded
    Under section 4158, Revised Statutes, the right of James to the lands, legal or equitable, descended to his son, Darlton. The unpaid purchase money became a charge against the personal estate of James. But, if necessary, under section 6166, Revised Statutes, his equitable interest might be sold to pay debts of the estate. Revised Statutes, 6090, 6091; Giauque Decedent’s Estate, 526.

      At the decease of James, his right and title passed immediately by descent to his heir, Darlton.
    If the administrator of James had sold 40 acres of this land to pay the purchase money debt, his son, Darlton, would have held the 160 acres remaining by descent unincumbered.
    The $2,000 was never a debt or obligation of Darlton. If the deed to James had been delivered, taking a mortgage for the $2,000, at his decease the land would have descended to his heir, subject to the incumbrance. But, if the legal title was retained as a security for the purchase money the equitable title in the same manner must go to the heir with dower and rights of creditors.
    For more than a year after the decease of James Higgins, his son, Darlton, and Josephine, his widow, held these lands as widow and heir. By removing an incumbrance by a sale of part of it with his other money the title would not be changed from one by descent to purchase.' As it came to him it must remain.
    The forty acres sold came to Darlton by descent subject to the lien for purchase money. This was sold and the proceeds applied in payment of the balance due.' He paid no part of the purchase money. He never purchased of John Higgins, or took any title from him. He alleges his father’s contract and right, alleges his decease intestate, leaving him the only heir and as such succeeding to his father’s rights. So the decree found and adjudged. Patterson v. Lamson, 45 Ohio St., 90.
   Burket, C. J.

It is urged in behalf of defendants in error, that under section 4158, Revised Statutes, the rights of James, whether legal or equitable, descended to his son, Darlton. This is true, but James Nad only an equity, the legal title remained in his father, John. It is also urged, that John made a deed to James for the lands, and retained the same undelivered, as a security for the unpaid purchase money. This is conceded, but the fact still remains, that by retaining the undelivered deed, he thereby retained the legal title to the lands in himself, and the guardian of Darlton, had to pay two thousand • two hundred dollars, to obtain the legal title from John, and upon paying that sum, the legal title passed from John, not by virtue of the undelivered deed, but by operation of the decree of the court, and thereby the legal title vested in Darlton by purchase, and not by descent.

As to John Higgins, it must be perfectly clear, that he parted with the legal title to the lands by a sale thereof, and not by easting the title by descent on another; and it is equally clear, that if John parted with the legal title by sale, that Darlton acquired the legal title by purchase. The legal title passing from John to Darlton, could not go from John by sale, and be received by Darltou by descent. Being a sale of the legal title by John, it was a purchase by Darlton, and Darlton Higgins therefore received the legal title by purchase and not by descent. True, he inherited from his father whatever equity the father had in the lands, but in determining questions as to whether lands came by purchase or descent, regard is had to the legal title alone, uninfluenced by considerations of equity. Patterson v. Lamson, 45 Ohio St., 77; Stembel v. Martin, 50 Ohio St., 495.

The controlling facts of this case are conceded by the parties, and in such cases, upon a reversal, this court may proceed and render such judgment as the circuit court should have rendered. Minnear v. Holloway, 56 Ohio St., 148.

The circuit court erred in applying the law to the conceded facts and its judgment is therefore reversed, and a decree entered in favor of the plaintiff in error, quieting her title to said lands in fee simple.

Judgment accordingly.