
    The State, ex rel. Webber, Prosecuting Attorney, v. Wickham, Recorder.
    
      General index of county recorder — Recorder not compelled to keep up same, when — Sections n$4 and 1155, Revised Statutes.
    
    Under the provisions of Section 1155, Revised Statutes, a recorder cannot be compelled to keep up general indexes provided for by Section 1154, Revised Statutes, and theretofore authorized and completed, when the commissioners of the county refuse to pay therefor.
    (No. 10369
    Decided October 22, 1907.)
    Error to the Circuit Court of Franklin County.
    
      
      Messrs. Webber, McCoy, King & Game, for plaintiff in error.
    Any action taken by the commissioners without warrant of law is not binding on the county, and is of no force or validity as an act of the county.
    The county commissioners have such powers and such only as are conferred by statute. They are restricted to the exercise of the powers conferred upon them by statute. Commissioners v. Railway Co., 45 Ohio St., 401; Commissioners v. Leighty et al., 1 C. C., N. S., 431.
    A grant of power to them must be strictly construed. Treadwell v. Commissioners, 11 Ohio St., 190; Jones, Auditor, v. Commissioners, 57 Ohio St., 213.
    
      Mr. M. E. Thrailkill, for defendant in error.
    On the construction of statutes, see Lewis’ Sutherland Statutory Construction, 2d ed., Sections 485, 582.
    Courts are inclined to put an equitable construction upon statutes, which are brief and general in their terms.
    The Supreme Court of Ohio favors a liberal construction in remedial matters. In Lucky v. Brandon, 1 Ohio, 49, the court said in announcing a rule of construction, that a case should be decided “upon principle and sound practical' sense,” and in the case of Allen v. Little, 5 Ohio, 66, the court said in announcing a rule of statutory construction, that “every statute should receive such construction as is consistent with the common sense of that community.”
    The legislature evidently intended to provide for “General Alphabetical Indexes,” as well as for the “Plat System,” and the purpose and policy of the law is the guide in statutory construction. State, ex rel., v. Brewster, Auditor, 44 Ohio St., 249; Heck v. State, 44 Ohio St., 536; Cross v. Armstrong, 44 Ohio St., 613.
    The legislative acts relating to these indexes show an intent to provide for general indexes, but this is qualified by a special condition precedent, that the county commissioners find a necessity for and direct or authorize these indexes to be made. A general intent is controlled by a particular condition precedent. 2 Lewis’ Sutherland Statutory Construction, Section 351. The directions and authority of the county commissioners to the recorder is concurrent with the duty of. the recorder to do the work. In this case the recorder stood ready and willing to do the work, but the county commissioners refused to carry out their part of the statutory conditions. The plaintiff herein claims that these indexes should be made under Section 1153, Revised Statutes, but the indexes provided for in that section are paid for by the parties depositing the instrument, and have been kept up to date by the recorder, as found by the circuit court. This finding is conclusive against the relator. Piad the county commissioners directed the county recorder to keep up these general indexes, and he had refused, we admit that a writ of mandamus should issue; but since he stood ready to make these indexes, and the county commissioners refused to perform the conditions precedent on their part, the writ should be denied.
   Davis, J.

In February, 1883, the commissioners of Franklin county contracted with the recorder to prepare an index of deeds and mortgages according to a special plan, for a stipulated price, “said indexing with respect to names of the several parties to each instrument to be done as now required by law.” The only specific provisions of law relating to this subject were then, as now, Sections 1153, 1153a, 1154 and 1155, Revised Statutes. This contract was performed by the recorder then in office; and the indexes thus completed have been kept up by the successors in the recorder’s office until November 1, 1905, at which time the commissioners of the county notified the recorder that they would no longer pay for keeping up these indexes. Upon receiving this notice, the recorder discontinued the indexes which had been completed and kept up under the contract made in 1883, but continued to make the indexes required by Sections 1153 and 1153a. The prosecuting attorney then instituted this proceeding to compel the recorder to keep up, without compensation, the indexes which he had discontinued after notice from the commissioners that they would no longer pay for the work. The circuit court found that the recorder had been, and was, complying with the requirements of Sections' 1153 and 1153a, except in some details which the court ordered to be corrected; that the indexes which arq the subject of this litigation are not the indexes required by Section 1153a; and. that the relator is not entitled to a writ of mandamus commanding the recorder to bring up to date the indexes in controversy and to keep up the same in the future. The circuit court also refused to state as a conclusion of law, as requested by the relator, that the indexes which the recorder has refused to continue without compensation are not indexes authorized by Section 1154, Revised Statutes.

The only provision for “general indexes” is in Section 1154, and there it is provided that such indexes shall be made “in addition to the alphabetical indexes,” that is, separate, and distinct therefrom. The distinctive characteristic of such general indexes is that they present at a glance a sort of abstract of the conveyance in addition to an alphabetical reference to the conveyance itself; and they present also a means of tracing all the conveyances and instruments affecting the title to any particular piece of real estate. These are matters of great convenience and value, especially in populous communities where the records are voluminous. The circuit court has stated in its findings of fact in this case that the general indexes contain the names of both parties to the instrument alphabetically arranged under appropriate headings, the year when filed for record, the reference to the volume and the page thereof where the instrument is recorded, and a summary description of the property conveyed, by reference to the town or township, lot, section or survey, addition or subdivision in which the property is located. The description of the indexes which are the subject of this controversy, as found by the circuit court, brings them clearly within the provisions of Sections 1154 and 1155; and they are not provided for or required by any other sections. These “general indexes” are to be made only when in the opinion of the county commissioners they are needed and they so direct; but the power to direct and the obligation to pay are reciprocal; for, while the recorder shall make the indexes when directed by the commissioners, the statute is just as imperative that he shall receive compensation. So that when the commissioners notified the recorder that they would no longer pay for the service, the latter was necessarily relieved from the duty of further performing it.

The relator insists, however, that whether or not these “general indexes” are authorized by Section 1154, they having been made, the recorder is required by Section 1155 to “keep up the same;” but here again the reciprocal nature of the obligation, on one side, to perform the service and, on the other side, to pay for it is carefully preserved, and it follows that when the commissioners notified the recorder, in advance, that they would not pay, they absolved him from that obligation to perform which was based on their obligation to pay.

The circuit court found that the recorder has substantially complied with the requirements of Sections 1153 and 1153a, and we think that its conclusions in that respect were also correct. The judgment of the circuit court is

Affirmed.

Shauck, C. J., Price, Crew, Summers and Spear, JJ., concur.  