
    OFFICE AND OFFICERS.
    [Carroll (7th) Circuit Court,
    November, 1907.]
    Burrows, Laubie and Cook, JJ.
    State ex rel. D. O. Rutan et al. v. George S. Tinlin et al.
    1. Auditors not Entitled to Additional Compensation fob Furnishing As--sessob’s Blanks. 1
    Public officers are not entitled to compensation, in addition to their salary, for services required of them by statute, unless the statute provides-therefor in express terms; and as Rev. Stat. 1029 (Lan. 2369) does not expressly so provide, auditors are not -entitled to such additional compensation for services in furnishing blanks to assessors.
    2. COMMISSIONERS ALLOWING COMPENSATION IN ABSENCE OF RATES PRESCRIBED-Held Unlawful.
    If the provisions of such section could be construed to mean that the auditors should receive such extra compensation for their services in furnishing such blanks, as no rate therefor is named therein, or in the sections that specify the rates by which all services of such auditors shall be estimated, Rev. Stat. 1077, 1078 (Lan. 2416, 2417), forbid the allowance ■ by the commissioners of such compensation, and render the same-unlawful.
    [Syllabus approved by the court.]
    Appeal from Carroll common pleas court.
    W. L. Handley and J. C. Oglevie, for plaintiff.
    Pimple & Eckley, for defendant:
    In determining the question as to whether there is any statutory provision upon which to base a legal claim for compensation for services rendered by the auditor in furnishing blanks to the assessors, we-desire to 'call attention to Rev. Stat. 1029, 1528 and 2749 (Lan. 2369, 3008, 4095). The purpose and province of Rev. Stat. 3,029 (Lan. 2369) is to provide for the allowance of reasonable compensation to the auditor for his services rendered, in furnishing the several assessors with necessary blanks, and that it was the purpose and province of Rev. Stat. 1528 (Lan. 3008) to provide for the payment of the cost of the blanks, themselves.
    Construing the provision of Rev. Stat. 1029 (Lan. 2369) that “the auditor shall furnish the several assessors all blanks, and all reasonable charges therefor, shall be allowed by the county" commissioners and paid1 out of the county treasury;” the word “therefor,” as used in this section is an adverb, and means “for this, that or it,” therefore inserting-the meaning of the word in lieu of the word itself, you have the substance of the provision as follows: “All reasonable charges,” for this,, that or it, viz., for the auditor furnishing the several assessors alL blanks, “shall be allowed by the county commissioners, and paid for out of the county treasury. ” In other words, it is equivalent to saying the auditor shall furnish the several assessors all necessary blanks, and for this (furnishing) he shall be allowed all reasonable charges.
    It is plain that the charges authorized to be allowed by this section are not for material, but for doing something, and that something is the services rendered by the auditor in furnishing to the several assessors the necessary blanks.
    Construing the provision of Rev. Stat. 1528 (Lan. 3008) that “the county auditor shall furnish to all assessors all blanks, which shall be paid for out of the county treasury;” grammatically, there can be no doubt that the word “’blanks” is the antecedent of the word “which,” .and it necessarily follows that it is the blanks for which payment is provided by this section.
    We therefore submit that a plain reading of the. language used in these two sections makes it clear, that the one was intended to authorize a reasonable compensation to the auditor for his services rendered in furnishing blanks to the several assessors', and that the other was intended to authorize and provide for the payment of the blanks so furnished: but if there is any doubt as to this being the correct construction of the respective sections, we think a careful consideration of the origin of the provisions as now contained in Rev. Stat. 1029, 1528 and 2749 (Lan. 2369, 3008, 4095), will wholly remove such ■doubt.
    The provisions of Rev. Stat. 1029 (Lan. 2369), therefore, having furnished a legal basis for the claim involved herein, and the same having been regularly presented to, considered and allowed by the county ■commissioners, we submit that their action is absolutely final, unless the same is impeached for fraud or gross abuse of power, neither of which elements can be found in this case; that the action of the commissioners is final herein, see the following: Wood Co. {Comrs.) v. Pargillis, 6 Circ. Dee. 717 (10 R. 376) ; Ridenour v. State, 7 Circ. Dec. 481 (14 R. 393): Plessner v. Pray, 8 Dec. 149 (6 N. P. 444); Hamilton Co. {Comrs.) v. Noyes, 35 Ohio St. 201; Jones v. Lucas Co. {Comrs.) 57 Ohio St, 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710]; Vindicator Ptg. ■Co. v. State, 68 Ohio St. 362 [67 N. E. Rep. 733].
    That the statute of limitations has no'effect upon, or application to, this ease whatever, we think is made clear by the following: Fisher v. Mossman, 11 Ohio St. 42; Taylor v. Thorn, 29 Ohio St. 569; Belmont, Co. {Comrs.) v. Ziegelhofer, 38 Ohio St. 523; Stewart v. Logan Co«■ 
      (Comrs.) 1 Circ. Dec. 404 (2 E. 134) ; Taylor v. Fitch, 12 Obio St. 169 Chinn v. Fayetie Tp. (Tr.) 32 Obio St. 236.
    The legislature intended that the auditor could receive no compensation for services, unless they were of the character that a claim therefor could be made out in detail according to the rates named in preceding Eev. Stat. 1077 (Lan. 2416). Jones v. Lucas Co. (Comrs.) 57 Ohio St. 189 [48 N. E. Eep. 882; 63 Am. St. Eep. 710]. Eevised Statutes 1077 and 1078 (Lan. 2416, 2417) were applicable only to those sections in Chap. 4, of Title 8, which provided a rate of compensation.
    Denied that an auditor could not be paid for any services except that for which he could make out a claim in detail according to the rates, named in Eev. Stat. 1069, 1071, 1073, 1074 and 1075 (Lan. 2410 to 2414), the only sections that precede Eev. Stat. 1077 (Lan. 2416) which provide a rate. These sections commencing with 1536-91, and including 2625-3502, 4064, 4451a, 4506, 4507 and 4849, all provide for lawful compensation to the auditor, and yet not one of them provides for the rates referred to in Sec. 1077.
   LAUBIE, J.

The ease of State of Ohio, for the use of Carroll County, by D. O. Rutan, et al. v. George S. Tinlin, et al., is brought here upon appeal and submitted to the court upon the evidence and the arguments of counsel.

The action is brought for the purpose of enjoining payment of a certain sum of money to Mr. Tinlin, auditor of this county. This claim was presented by him to the present commissioners; they allowed it and ordered it paid, and this suit is brought to restrain that payment. The claim was for services in furnishing blanks to the seventeen assessors in the county, while he was such auditor in the years 1900 to 1905, inclusive. The amount claimed by the auditor was four dollars each year for each assessor, making a total of $408, which the commissioners allowed, under Rev. Stat. 1029 (Lan. 2369), which reads as follows:

“The auditor shall furnish the several assessors all blanks, necessary for their use in the discharge of the duties enjoined on them by law, and all reasonable charges therefor shall be allowed by the county commissioners, and paid out of the county treasury.”

It is therefore up to us to determine as a matter of law whether or not the auditor was entitled to pay for such services, and whether the commissioners had authority to order its payment. It has long been the duty of county auditors to furnish blanks to assessors for specific or for general purposes, but the forms therefor were and are furnished such auditors by the auditor of state (Rev. Stat. 2749; Lan. 4095) ; so that tbe services performed by the auditor in this instance .were simply-1 procuring the printing of the blanks, according to the forms thus furnished, and distributing them to the assessors, as provided in Rev. Stat. 2749 (Lan. 4095), as well as in Rev. Stat. 1029 (Lan. 2369).

Said Sec. 1029, may possibly be construed in more ways than one,, and its construction depends upon the meaning to be ascribed to the-phrase "all reasonable charges therefor:” To what does it refer?-' What is to be paid for ?

The principal definitions of the word "charge,” as thus used, are-price, cost— the price or cost of an article or thing named, in this instance the blanks. Such auditor is required to furnish all assessors in his-county each year while he is in office all necessary blanks, and the-charges — the prices or costs he has paid, or agreed to pay for the-blanks — are what are to be paid out of the county treasury. Thus defined, the charges — prices or costs — have reference solely to the article-named — the blanks — and could not have reference to his services. While-it might possibly be construed to mean payment for either or for both, the clearest interpretation to be put upon it is that it refers-solely to the blanks.

However, if this clause of this section can be considered as subject to a double interpretation, there can be no legal basis for the compensation claimed, because public officers-of this character are not entitled to extra fees or compensation for services, unless specifically provided for and expressly defined in the statutes. Mere ambiguous-phrases, that may be construed in different ways, are not sufficient upon which to base a claim, and to authorize the commissioners to order its-payment, especially where a definite salary is given such officer for his-general services.

It has been uniformly held by the Supreme Court, that in order to-entitle an officer to extra compensation, the statute must be definite-in its terms so as to admit of no double interpretation. That such compensation cannot be allowed upon an implication; and while we think the only clear and definite meaning to be ascribed to the words of such clause, in said section, is, the cost of the blanks, the same result must follow if the words will admit of a double interpretation. From the use of such phrase the legislature may well be considered as having intended the services of the auditor to be covered by his salary. If the legislature intended that the auditor should be paid for his services in addition to the cost of the blanks, it would undoubtedly have so provided in express terms, as it did in Sec. 1075 (Lan. 2414) in regard to> filing away the tax returns of assessors, for which they receive twenty-five cents for each township; and as it did in every other instance where it intended to confer special compensation in addition to such officers ’ annual •salary.

When Mr. Tinlin became auditor, said Sec. 1029 (Lan. 2369) and Secs. 1069 to 1078, inclusive, of the Revised Statutes of 1880, of Title 8, Chap. 4, under subdivision “County Auditors,” were in force and defined the duties, services, compensation and fees of such auditors, .and prescribed the rates by which such compensation should be computed for all claims payable out of the county treasury, none of which ' specify or relate to services in furnishing blanks to assessors. Sections T069, 1070 and 1072, fixed and named a ratable per annum salary for the general services of such auditors, according to population; and .Secs. 1071, 1074 and 1075 (Lan. 2411, 2413, 2415) an additional compensation for services in special matters therein named; and Sec. 1073 (Lan. 2412) specifies the amount of fees that the auditor might charge and receive in performing for individuals the duties therein specified; and Sec. 1076 (Lan. 2415) an allowance for clerk hire.

In none of these sections providing for compensation to auditors for services to be paid out of the county treasury, or otherwise, are the services involved herein referred to in any manner; and even if said Sec. 1029 (Lan. 2369) could be construed to include payment for •services of the auditor, said Sec. 1077 (Lan. 2416) is inconsistent therewith, and absolutely prevented the allowance by the commissioners of •any compensation therefor, as follows:

“3077. 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,” The word “rates,” as here used, means, of course, the compensation to be paid to the auditor for his services, as specified in those sections including the rates .specified in the statutes referred to in said Secs. 1071, 1074 and 1075, and the commissioners could not allow the auditor compensation for any other services than those named as to which a rate — amount of compensation — was provided. Neither auditor nor commissioners had any right to create a rate of compensation. It could only be such as was named in the statutes, and if none was named for services therein required to be performed none could be allowed. And that is the case here. In none of those sections or statutes referred to are the services in furnishing blanks to assessors named, or any rate specified therefor, ■and consequently none can be allowed.

As the provisions of said Sec. 1077 apply to all claims for services, the auditor, therefore, or the commissioners, could not fix the money value of his services according to his own estimate of their value, as was done in this case. It must be determined according to the “rates” named in the statutes which define his compensation, and none other could be allowed by the commissioners; and none of such rates include, or apply to, the services involved in this •case. In addition thereto said Sec. 1078 (Lan. 2417) expressly precludes it, and makes it unlawful for an auditor to charge or receive any other or further fees or compensation than such as are named in said Secs. 1069 to 1076 (Lan. 2410 to 2415), inclusive, as follows:

“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 fees or compensation, either as clerk of any board, or for any [other] services rendered by him.”

Applying this section to the case in hand, where the compensation is to be paid out of the county treasury, if paid at all, the sections referred to therein as “the foregoing sections,” are the same sections referred to in the same words in the preceding section, 1077, to wit, the sections which define the rates by which all claims for services of county auditors are to be computed, and none of which rates refer or .apply to the claim for services in furnishing blanks to assessors. If there could be any doubt as to this, then no specific compensation could be allowed for such services, as compensation for a specific act cannot be allowed unless clearly and definitely specified in the statute. So that if the legislature intended by the provisions of said Sec. 1029 (Lan. 2369), to allow compensation to the auditors for their services in furnishing such blanks, it rendered such intent nugatory by the provisions of said subsequent sections 1077 and 1078 (Lan. 2416, 2417). Whether intentional or not is immaterial, as the language is plain and explicit.

By the enactment of said Secs. 1077 and 1078, no compensation for any other services than those specified in said subdivision of Title 8, Chap. 4 as to which a rate of compensation was provided for, could legally be claimed or allowed, unless expressly provided for in some subsequent section or statute. So that if said Sec. 1029 could be construed to mean that the services of the auditor was what was to be paid for, it 'would -be repugnant to the explicit provisions of such subsequent Secs. 1077, 1078, as no rate is named in said Sec. 1029.

In State v. Hamilton, 47 Ohio St. 52 [23 N. E. Rep. 935], pages 69-70, it is declared in regard to such repugnancies that “it is one of the settled rules of construction that when, in a statute, there are-several clauses which present # * * an irreconcilable conflict, the one last in order of date, or local position, must prevail, whether the conflicting clauses be, sections of the same act, or merely provisions of the same section.”

The question presented and discussed as to sections subsequent to 1078 providing for payment for services, has nothing to do with this case. If it had, the rule as laid down in Cincinnati v. Connor, 55 Ohio St. 82 [44 N. E. Rep. 582], would probably determine it against the defendants in error.

A number of such subsequent sections are the ones named in Secs. 1071, 1074 and 1075, heretofore referred to, and in every one of them a rate is specified for the services therein required; none of which relate to the services involved in this case.

May 12, 1902, the legislature amended said Sec. 1069 (Lan. 2410), by fixing the rates of the auditors ’ salary by a percentage on all moneys; collected by the county treasurers, and repealed said Secs. 1069, 1070 and 1072, but said Secs. 1071, 1073, 1074, 1075, 1076, 1077 and 1078 (Lan. 2411 to 2417) were not, and remained in force as before. Such amendment and repeal therefore in no manner affects the question we have here.

Revised Statutes 1528 (Lan. 3008) has no effect upon the construction to be given to the provisions of Rev. Stat. 1029 (Lan. 2369) , and we cannot see how it can help the contention of the defendants. Revised Statutes 1528 (Lan. 3008) is in Title 11, Chap. 2, under the heading “Officers of Civil Townships,” subdivision “Assessors”; and provides that “The county auditor shall furnish to all assessors, all blanks needed by them for the listing of property, gathering and returning statistics, and other official duties, which shall be paid for out of the county treasury”; and in effect is merely a duplicate of Rev. Stat. 1029 (Lan. 2369), as such claim could not be paid until allowed by the county commissioners, and legally they could allow only a reasonable sum.

Further, said Sees. 1029 (Lan. 2369) and 1069 to 1078 (Lan. 2410 to 2415) inclusive, differently numbered, were in force before their re-enactment in 1880; and while other statutes required the auditors to furnish blanks to assessors for certain purposes, said Sec. 1029 was the only statute on the subject that provided for payment, until said Sec. 1528 was enacted in the revision of 1880, and it evidently was not intended to, and did not expressly, or by implication, modify in any manner the meaning of said Sec. 1029, or the effect of the provisions of said Secs. 1077 and 1078 which, for the reasons heretofore assigned, precluded the award of any compensation for furnishing the blanks', even if Sec. 1029 could be construed to mean that auditors should be compensated for their services in furnishing such blanks.

It is a mistake to assume that a section of Revised Statutes is a mere re-enactment of some old statute referred to in the brackets at , the end of such section. An actual examination of the old statutes will conclusively show, in this instance, that said Sec. 1528 Rev. Stat. 1880, was not a re-enactment, at least in so far as the provision for payment was concerned; that it was first enacted in 1880, and that while there were statutes theretofore in force requiring blanks to be furnished to assessors by the auditors, no one of them contained any provision for payment except said Sec. 1029 as originally enacted in 1870 (67 O. L. 106, Sec. 18) and which has been in force ever since.

The legislature at times duplicate statutes, and did in this instance deem it prudent in the- revision of 1880, to duplicate in effect the provisions of said Sec. 1029. It not only duplicated Sec. 1029, but triplicated it as'to the auditor’s duty in Sec. 2749, as re-enacted March 13, 1891 (88 O. L. 96).

It is true that this question was settled otherwise by the circuit court of Delaware county, in the ease of State v. Lewis, wherein it was. sought to recover back money paid him for services in furnishing blanks; to assessors, as in the ease at bar; and the courts in that county held that the auditor was entitled to such payment.

The Supreme Court, in a former case between the same parties;. Lewis v. State, 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710], disposed of in connection with the case of Jones v. Lucas Co. (Comrs.), settles'the question made here upon principle, and shows; clearly that a county auditor is not entitled to any compensation foie services in furnishing blanks to assessors under Sec. 1029. The courts in that case, denied the right of Auditor Lewis to compensation for any of nine different specific acts performed by him as required by the; ' statutes; in regard to which, as declared in the opinion, page 211, “No extra compensation is provided by statute, at least, not clearly so.” In disposing of the case, Judge Spear says, page 207 et seq.:

“Sections 1069 and 1070, provide a salary to county auditors*, from eight hundred 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 delates to the subject of inquiry here.”

That in order to entitle the auditor to any extra compensation, the statute must be clear and explicit; that such compensation “cannot be allowed upon an implication,” and that the right of the commissioners to pass upon and allow such claims is a very narrow one.

That Sec. 1077 (Lan. 2416) “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 performed, shall allow the bill, etc., and then the auditor is authorized to draw his warrant. 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.” Page 213. (The italicising is mine.)

The opinion thus announced, and the provisions of Rev. Stat. 1077, 1078 (Lan. 2416, 2417), justify the right to the injunction asked for .in this case. There is no “rate” specified in either of the sections referred to by which compensation for services in furnishing such blanks could be determined and fixed; and that of itself prevented any ^allowance of extra compensation therefor, even if the terms of Rev. Stat. 1029 (Lan. 2369) were plain and unambiguous.

For the reasons stated, decree will be entered in favor of the plaintiff as prayed for.

Burrows, J., concurs.

COOK, J.,

dissenting:

I cannot concur with my associates in the conclusion to which they have arrived.

There is no question but that the defendant is not entitled to the money except the statute provides that he shall be paid for his services; otherwise the presumption is, that he performed the services gratuitously, or that he is compensated by his general salary. Such are the uniform •decisions of our Supreme Court. The question then is, does Rev. Stat. 1029 (Lan. 2369) provide for such payment? My associates think not, while to me it seems that it does.

The learned judge who writes the opinion, says that the words ‘ ‘ all reasonable charges therefor” refer to the blanks. We do not so construe the words.

The subject of the section is the duty of the auditor and not compensation for the blanks; and if it meant the charges or compensation for the blanks why say “reasonable charges;” certainly the auditor would be entitled to the cost of the blanks if he paid for them in good faith whether reasonable or unreasonable. Furthermore why should the auditor be allowed for the charges of the blanks % The blanks are procured by the county and not the auditor. He is under no obligation to pay for them and the county under no obligation to pay him for them. No, the words “all reasonable charges therefor” refer to the services of the auditor.

It seems to me that Rev. Stat. 1528 (Lan. 3008) has an important bearing upon the question and materially helps to sustain the contention of defendants. That section provides:

‘ ‘ The county auditor shall furnish to all assessors all blanks needed by them for the listing of property, gathering and returning statistics,, and other official duties, which shall be paid for out of the county treasury.”

Concededly this refers to the payment for the blanks; the county auditor must secure the blanks for the county and pay for them out of the county treasury.

My associate who writes the opinion in this case says this is but a duplication of Rev. Stat. 1029 (Lan. 2369). True if his contention is correct that the blanks are referred to in both sections, but in Rev. Stat. 1029 (Lan. 2369) “all reasonable charges therefor” are to be paid (Sec. 1528 was passed many years prior to Sec. 1029) and why duplicate the section. It would certainly be very absurd for the legislature to do so, and therefore both sections should stand and be held as applying to different subjects if such construction can be fairly placed upon the sections.

But it is said by my associate that, conceding Sec. 1029 (Lan. 2369) applies to the payment of the services of the auditor, yet-the auditor is not entitled to any pay for the reason that Rev. Stat. 1077 and 1078 (Lan. 2416, 2417) provide that the auditor shall only receive compensation in special cases, when the rate is fixed by the statute and that the claim must be made out in detail according to the rates specified. I do not think that Rev. Stat. 1077 and 1078 (Lan. 2416, 2417) apply to the case under consideration. These sections only .apply to eases specified in Secs. 1069 to 1076 (Lan. 2410 to 2415), inclusive. Section 1077 (Lan. 2416) says distinctly “shall be made ont in detail according to the rates named in the foregoing sections,” which are the sections I have named. They could not apply tó all sendees performed by the auditor as there are services performed by him for which he is entitled to pay that the compensation is not fixed at a specified sum or rate, but is left to the discretion of the commissioners. Take for instance sendees performed under the provisions relating to boards of education. Revised Statutes 4064 (Lan. 6655) provides :

“The commissioners of each county shall allow the county auditor, .annually, a reasonable compensation for his services under this title, not to exceed five dollars for each city, village, special and township school district in his county, to be paid out of the county treasury:’ ’

Again under Rev. Stat. 4898 (Lan. 8371) relating to improved roads, the auditor is to serve as clerk of the board of directors, which is the commissioners, and in Rev. Stat. 4903 (Lan. 8376), it is provided that the clerk shall receive such compensation as shall be agreed upon by the board, but not to exceed $2.50 per day for time actually employed.

In neither of these cases is the amount or rate of compensation fixed, yet shall it be said the auditor is not entitled to compensation.

By taking time no doubt other sections might be referred to of like character and they show, as we have said, that Rev. Stat. 1077 and 1078 (Lan. 2416, 2417) are intended only to apply to the services directly referred to in the preceding sections.

There is another fact worthy of consideration and that is that Sec. 1029 (Lan. 2369) has remained on the statute books as it now, is for at-least forty years and during all that time county auditors have received compensation for their services in preparing and furnishing blanks to assessors without any question being made, and the state bureau of public inspection officially approves the payment. Furthermore, the attorney general of the state in a written opinion to the prosecuting attorney of Ross county, June 9, 1904, (see annual report of Attorney-general'Ellis for year, 1905, page 181) has said that they are entitled to be paid for their services under Rev. Stat. 1029 (Lan. 2369).

In addition to this as stated by my associate in his opinion, the circuit court of Delaware county in the ease of State v. Lewis, decided July 2, 1903, unreported, a case precisely similar to the one we have, by a unanimous court held that under Rev. Stat. 1029 (Lan. 2369), auditors were entitled to payment for tbeir services for preparing and furnishing blanks to assessors. This being so, a co-ordinate court should hesitate to hold otherwise unless it was very clear that such court was wrong in the prior holding.

The question involved un this ease was not before the court in the case of Jones v. Lucas Co. (Comrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710], and that case has no bearing upon it.

For these reasons I do not think an injunction should be allowed.  