
    John S. Shepard v. The Commissioners of Darke County.
    Where a claim against a county is created hy statute, and to be paid by the county upon the allowance of the county commissioners, if the claim is in. part allowed by the county commissioners, the remedy of the claimant, if not satisfied with the determination by the commissioners, is to appeal to the court of common pleas,; and in such case he cannot sue at common law.
    Demurrer to special plea in bar.
    The plaintiff brought assumpsit in the court of common pleas of Darke county. The case was appealed to the district court of the county, and thence reserved to this court.
    The declaration contains two counts:
    1st. “ Eor that, whereas, heretofore, to wit, on the 2d day of January, A. D. 1850, at the county aforesaid, the plaintiff then being recorder of Darke county, declined to be at the expense and trouble of providing suitable books, and making a new and complete general index to all the records in the recorder’s office in said county of Darke, for such compensation as the commissioners of said county might deem reasonable and just, after the same might be completed, according to the statute in such case made and provided. And the commissioners of said county then in office, desiring to have said index made for the use of said county, then and there undertook and promised the plaintiff that if he would provide books and make said index, that the commissioners of said county, on the completion thereof, would pay to him for said materials, and work and labor so much as the same were reasonably worth; to which proposition of the commissioners then in office, the plaintiff assented, and then and there provided suitable books, and subsequently,- and before the commencement of .this suit, made and completed a new and complete general index to the records in the recorder’s office, according to the provisions of said contract, which was accepted and received for the nse of said county. And the plaintiff" avers that the hooks so provided, and the work and labor so done and performed by the plaintiff in making said index, were worth four hundred and ten dollars, which amount, heretofore, to wit, on the second day of December, A. D. 1850, he presented to the commissioners of said county, then in office, for payment, and was by them, then and there, disallowed, and payment refused, except the amount of two hundred and ten dollars, which the said commissioners then and there allowed, and ordered an order to be drawn on the treasurer therefor. 'Whence' a right of action hath accrued to the plaintiff to recover what said books, work and labor are reasonably worth, to wit, the said sum of four hundred and ten dollars.
    2d. “ For that, whereas, heretofore, to wit, on the 2d day of December, in the year of our Lord one thousand eight hundred and fifty, at the county of Darke, in the State of Ohio, the said plaintiff, by authority and requirement of certain laws of the State of Ohio, had provided suitable books, and continued and completed the general indexes to the records in the recorder’s office of said county of Darke; and the said defendants, then and there, by authority of said laws, undertook and promised the plaintiff to allow him for his hooks and services in that behalf, such compensation as should be reasonable and just. And the plaintiff avers that his books and services in that behalf were reasonably worth four hundred and ten dollars. And the plaintiff afterwards, to wit, on the day and year aforesaid, made out his account and presented it to the said commissioners for that sum, which the said commissioners, then and there, refused, and still refuse to allow.”
    To these two counts the defendants pleaded specially: “ That the said books, work and labor therein specially mentioned, was done and performed by the said plaintiff in his official capacity as county recorder of the said county, and by virtue of the laws of this state, ánd not by any agreement with defendants; that at a regular meeting of defendants, on Monday, December 3, A. D. 1850, at the county aforesaid, the said plaintiff presented to said board of county commissioners, then present at their office, his account for the said books, work and labor aforesaid about making said general index, and the said board having then and there examined the said account and the books, work and labor performed by plaintiff, as county recorder, and in view of the premises, and believing that two hundred and ten dollars were a full, just and reasonable allowance for the said books, work and labor, did then and there allow to the said plaintiff therefor the said sum of two hundred and ten dollars, and directed the auditor of said county to issue an order in favor of plaintiff for that sum on the treasury of said county; of which action by said board the said plaintiff then and there had notice. And the said defendants aver that said allowance was just and reasonable, and a full compensation for said work and labor; that their said order as county commissioners was regularly entered upon the journal of their proceedings as such; that the same is still in full force, that it has not been appealed from or reversed by this court or any other court; and that the said plaintiff, on demand, is at any time entitled to receive of and from the auditor of said county an order on the treasury thereof, for the said sum of two hundred and ten dollars. And this defendants are ready to verify,” etc.
    To this special plea the plaintiff* demurred.
    
      William Allen and Abner Haines, for plaintiff.
    
      John Reeves and W. M. Wilson, for defendants.
   J. R. Swan, J.

The special plea in bar denies that there was any such agreement as is set forth in tlie first and second counts of the declaration, and then proceeds to set np another and different statutory agreement, and pleads matter in bar to this last agreement. The plea is in this respect defective; and if it be good for any purpose, it amounts to the general issue.. The demurrer is well taken. But the plea is good enough for the counts to which it is pleaded.

The counts present this question: Whether, when the statute creates a claim against the county which, but for the statute, would not exist, and directs such claim to be passed upon and allowed by the county commissioners, and the commissioners pass upon it, the remedy of the party who feels himself aggrieved by the action of the commissioners, is by suit at common law against the county, or by appeal from the decision of the commissioners.

Ever since 1824 (22 v. Stat. 266,) the right of appeal from the decision of the board of commissioners has been allowed. The law of 1824 was incorporated into the law of 1831, and into the law of 1853, now in force. Swan’s Rev. Stat. 183, sec. 18.

In the case of Comm’rs Clermont Co. v. Robb et al., 5 Ohio Rep. 490, it was held that an appeal lies to the court of common pleas from the decision of the commissioners, on a contract to erect a bridge, where the latter refused to allow the claim of the contractors.

Whenever the board of commissioners are authorized to allow or reject claims against the county, the party aggrieved may appeal.

The statute relating to the work done by the plaintiff, provides that the commissioners shall determine the compensation: “The recorders shall be allowed, and receive for their services, such compensation as the commissioners of the respective counties shall deem reasonable and just.” Swan’s Rev. Stat. 792. The plaintiff', in this case, it seems, was not willing to leave the amount of the compensation to be determined by the judgment of the county commissioners. He alleges a special contract, that the compensation should, aside from the opinion of the commissioners, be reasonable and just. We doubt whether the county commissioners had any authority whatever to stipulate or make a contract different from that prescribed by the statute. But if they had power to change the rule of compensation, neither the law nor the agreement changed the tribunal which was eventually to allow the amount to be paid.

What we hold in the present case is this:

Where a claim against a county is of such a nature that, but for the statute, no right of action at common law would exist on the claim against the county, the remedy prescribed by the statute must be pursued, and no cumulative remedy exists. Whether, in any case, where the claim is to be passed upon by the county commissioners, the claimant can pursue any other remedy than by appeal, it is not necessary to decide in this case.

Brinkerhoff, Scott and Sutliff, JJ., concurred.  