
    * William Cricket et al. v. The State of Ohio.
    1. The act of May 1, 1862, “prescribing the fees of county auditors,” is neither in conflict with section 20, nor with section 26 of article 2 of the constitution.
    '2. Upon a proper construction of section 3, the effect of the act was to provide that county auditors in office at the time of its passage, should thereafter be compensated according to the rule prescribed by the act of February 7, 1861 (58 Ohio L. 7), and that those coming into office afterward should be compensated by the new rule prescribed by that act.
    3. The order of the county commissioners, on which, by the act of 18G2, the compensation of the auditor is to be paid, is a written order, the original, or an authenticated copy, of which will constitute the warrant and voucher of the treasurer for the money paid.
    4. The amount due the auditor for his official services is not a claim against the county for which he is authorized to draw his own warrant, under section 13 of the act of April 4, 1859 (S. & 0. Stat. 98); and th'e obtaining of money from the treasury as compensation to which he is not entitled, upon Ms own warrant, constitutes a misfeasance, for wMch to the extent the money obtained exceeds the amount due, Ms bond affords a remedy; and the fact that there had been a verbal allowance by the commissioners will be no defense.
    A Erroneous instruction to the jury, which the record shows could not havo prejudiced the party, is no ground for reversal.
    Error to the court of common pleas of Marion county. Reserved in the district court.
    The original action was brought in the name of the state against Cricket and his sureties, on his official bond for two thousand dollars, executed November 22,1861, as auditor of Marion county, to recover for divers sums of money which Cricket is alleged to have drawn from the county treasury, from the moneys of the county, .and converted to his own use, on June 1,1861, and at subsequent times during his then current term of office, without the allowance or order of the county commissioners, and without authority of law.
    The condition of the bond is as follows: “The condition of this ■obligation is such that, whereas the said William D. Cricket was, on the 9th day of October, 1860, duly elected county auditor of and for Marion county, and the State of Ohio, for the term of two years from and after the first day of March, 1861, and until his successor is elected and qualified: Now, if the said William D. -Cricket shall well and truly and faithfully discharge the duties of his said office, as such ^auditor, then this obligation to be [10 void ; otherwise to be and remain in full force and virtue in law.”
    In his answer, Cricket alleges that he drew and received the several sums of money justly and lawfully, and that for each of them he previously duly rendered his account,-and that the same was allowed, and directed to be paid, by the county commissioners.
    At the September term, 1865, of the common pleas, the case was tried to a jury. The plaintiff, after giving evidence tending to pirove the issue on its piart, rested its case, and the defendant gave evidence, by the introduction of written quarterly accounts of his charges rendered to the county commissioners, and the record-book ■of the annual statements of the county commissioners of the receipts and expenditures of-the county, and by parol, tending to show that these accounts were acted upon and allowed by the commissioners, and ordered to be paid from the county treasury. This qmrol evidence was objected to by the pilaintiff. The objection was overruled, and the evidence given to the jury; but it was not shown that such allowances and orders were ever entered upon the journal of the commissioners, and it was admitted that no such entries were ever made; and there was no proof whether the accounts so rendered by Cricket were filed with the county treasurcx- or xxot. The several sums drawn from the treasux-y were drawn upon the wax-rants of Cricket, as auditor, in the usual form. The-defendant further produced evidexice tending to prove the truth of the answer, and to show that all the several sums of money were dx-awn from the treasux-y, and paid to Ci-ieket as a compensation for his sex-vices as auditor of the county, upon the accounts thereforrendex-ed by him, and acted upon and allowed by the commissioners, and by them ordered to be paid to Cricket as and for such compensation.
    Thereupon the defendants asked the court to instruct the jury that, inasmuch as Cricket was elected to said office and entered upon its duties px-ior to October 1, 1861, xxeither the act of Februai-y 7, 1861, “to regulate and limit the compeixsation of county auditox-s ” (58 Ohio L. 7), nor the act of May 1, 1862, “ px-escx-ibing 11] the fees of county auditors ” (59 Ohio L. *104), was operative-to change or limit Cx-icket’s compensation for services as auditor, as= the same was prescribed by previous statutes, during the term for which he was elected, px-ior to October 1, 1861.
    The court refused to give this instruction to the jury, but did chax-g-e them that, from May 1, 1862, for the residue of the term for which Cx-icket was so elected, the compensation to which he was-entitled was that px-ovided for in the act of February 7, 1861, and no more; and that, if fox- services rendered after May 1,1862, Cricket, had drawxi from the treasui-y a sum larger than that provided for iix the act of Februai-y 7, 1861, the plaintiff was entitled to recover for any such excess, with interest thereon, although the county commissionex-s had allowed the sum so dx-awn by Cricket for compensation as auditor, and had ordered the same to be paid from the-county treasury.
    The defendants further x-cquested the court to instruct the jury, that if the sums drawn by Cx-icket fox- his compensation, from the county treasury, were regularly allowed him by the county commissioners as the proper compensation due him from the county, and he x-ecoived it as such, it does not work a forfeiture of the condition of his official bond, although the amount so allowed and paid should exceed the amount actually due him.
    
      The court refused to give this instruction, but charged the jury that under the circumstances stated in the request, the plaintiff would be entitled to recover for any excess received by Cricket on his warrant or order as auditor, on the county treasury, over the amount provided by the act of February 7, 1861, for services rendered after May 1, 1862.
    The defendants excepted to the charge given, and to the refusal to charge as requested.
    The jury found for the plaintiff, and assessed the damages at $1,006.17.
    Defendants moved for a new trial, on the grounds: 1. That the-verdict is not sustained by the evidence, and is against the law; 2. The court misdirected the jury in the charge given; 3. The damages are excessive.
    *This motion was overruled, and judgment entered on the [12 verdict.
    To reverse this judgment, Cricket and his sureties filed their petition in error in the district court, alleging for error, in substance,, that the court of common pleas erred in its instructions to the jury,, and in refusing to instruct them as requested by defendants below.
    
      R. P. Ranney, for plaintiffs in error.
    The exceptions relate to the charge of the court to the jury. Two questions arise upon the charge, and if these are not sufficient, a third may have to be considered.
    1. The acts referred to in the charge (the act of February 7,1861, 58 Ohio L. 7, and the act of May 1, 1862, 59 Ohio L. 104) worked a radical change in the mode of fixing the compensation of auditors. Instead of paying according to the work done, it was graduated upon the population of counties. It can not be pretended that Cricket was affected by the act of 1861. In the repealing clause it was provided, “ that nothing in this act shall be so construed as to-affect the compensation of any auditor now elected to, or who may be appointed previous to October 1, 1861, to said office.” This act was repealed by the act of 1862; and while it is not pretended that his compensation was regulated by this latter act, it is said that the repealing section of this act has brought him under the repealed act of 1861. In this section it is declared, that this act [1862] shall not. “affect” his compensation, except that from the time it takes effect he shall be entitled, during his term of office, to “the compensation provided for in said act of February 7,1861, and no more.”' The whole subject is left in a complete jumble. The legislature was required to “fix” the compensation of the auditor, and it had done so in 1859. The act of 1861 left him fixed, and entitled to the compensation provided by the previous law. This act never prescribed a compensation for him — never affected him; and he is only referred to in it for the purpose of giving the reason for the modified repeal of the old law. For him there could be no modified repeal of the act of 1861. There was nothing in it which could be continued in IS] force as to him, unless it was *that clause which continued in force the old law, and regulated his compensation by it. When, therefore, the act of 1862 continued in force the act of 1861, as to the auditors entering upon their duties on and after October!, 1861, it effected a modified repeal only of the act of 1861, as these auditors were bound by this act; and when it is further said that auditors who had entered upon their duties prior to that time, should have the compensation provided in that act, it was said in ignorance of the fact that they were not provided for in it, or with the intention to continue to them the old compensation ; and in either event their rights are unaffected. There has been no attempt to make a complete repeal, in terms, of the old laws by which their compensation was regulated; and no repugnancy between them and the later laws, so far as these auditors are concerned, is established so plainly -as, upon settled principles, justifies an implied repeal.
    This, I am informed, was the construction acted upon by the then auditor of state, Mr. Taylor, a good lawyer, and upon which settlements with the county auditors of the state were made.
    2. But suppose he was allowed and paid too much, does it work a forfeiture of the condition of his official bond, and thereby charge his sureties ? 1 feel exceedingly clear that it it does not. The bond of the auditor is provided for in the second section of the act of April 4, 1859. 1 S. & C. 96. It is “ conditioned for the faithful discharge of the duties of his office.” By the third section the county commissioners are required to bring suit upon it, against him and his sureties, “ if he shall fail to make settlement, or fail to pay over all moneys with which he may stand charged, at the time and in the manner prescribed by law, or shall misapply any money which may come into his possession in the discharge of his official duties. The thirteenth section of the act provides that all claims against the county shall be paid only upon the allowance of the county commissioners, and drawn only upon the allowance of the* county auditor. By the second section of the act of 1838, which provides in detail for the fees of the county auditor, he is to bo paid his fees out of the county treasury, on the order of the county-commissioners, who shall be satisfied of *the correctness of the [M account rendered by the auditor, etc. Now, I deny that the settlement of the auditor with the county commissioners for his own-fees, is any part of his oificial duty secured by his bond, or that, acting for the county, they can pay him more than he is entitled to, and thereby raise a cause of action against his sureties, in favor of the county, to recover it back. It seems to me preposterous. Tie occupies the position of a claimant upon the county, and the law has provided the agents of the county to deal with him, to represent the other side of the claim, and to see that he does not get too much. If they voluntarily place in his hands money to which he is not entitled, he may be liable for it, but he has given no bond and provided no sureties for such a liability. His liability upon the-bond can not be larger than that of the sureties, since they are all parties to the same contract. His bond has only furnished a security for his official acts, and I need not cite authorities to show with what strictness it is to be construed as against the sureties. It is a general and universal principle that the creditor-can not by his own-wrongful act, increase the obligations of a surety. It would be a; fraud to allow him to do so. Nor does such a claim as this come-within the letter or spirit of the bond. He has not failed to make settlement, or failed to pay over all moneys with which he stood-charged, or misapplied any coming to his possession in.the discharge of his official duties. At the most, he has simply made a-claim upon the county for more than was due him, and the agents-of the county have yielded to the claim and paid him. If they had-wrongfully lent him money out of the treasury, whatever responsibilities they might have incurred, I do not suppose any one would, have thought that he would have been so discharging official duty, as to charge his sureties; and yet it would have been quite as plausible as this claim.
    3. But if these acts of 1861 and 1862 can, in any way, be made-available to support this judgment, then, I insist that those acts were unconstitutional and void, being in direct conflict with the 20th and 26th sections of the second article of the constitution. By the 20th section it is made obligatory upon the general assembly-15] 
      " in cases not provided for in this *constitution to fix the term of ■office and the compensation of all officers,” and by the 20th section “all laws of a general nature shall have a uniform operation throughout the state.” Neither the term of office, nor compensation of auditors is provided for in the constitution ; both are to be fixed by legislation, and both by legislation having a uniform operation throughout the state. The term can not be fixed at two years in a part of the counties and three in the other’s, nor can the compensation for the same service be made one thing in some of them, .and another in the residue.
    Prior to these enactments the compensation was fixed by fees for the service performed, and the amount authorized to be received •depended upon the amount of labor performed.
    By the act of 1861, all auditors in office on the 1st of October of that year were loft to the old compensation, while a compensation partly by salary graduated upon population, and partly by fees and -discretionary allowances, was fixed for those coming into office after that time.
    The act of 1862 is framed upon the same general plan, although the salary, fees, and discretionary allowances are nearly all changed. By the last section, auditors, as I claim, are divided into three classes in respect to their compensation : 1. Those in office prior to •October 1, 1861, who are to receive the fees allowed by previous laws; 2. Those in office between October, 1861, and May, 1862, who .are to receive the compensation provided by the act of 1861; and, 3. Those coming into office after May 1, 1862, who are to receive the compensation provided in the act of 1862. For my present purpose, however, it makes no difference whether there are three or -only two classes after that time. My proposition is, that there can be no division into classes without destroying the uniform operation of the law.
    Those are “ laws of a general nature,” and if they are not uniformly operative by their provisions, they are void. Kelley v. The State, 6 Ohio St. 269.
    The constitution must be so construed as to harmonize all its provisions. No salary can be changed during the time for which the officer is elected. That is a case “provided for in the constitu16] tion;” and, of course, works such a modification *of the 26th section as is necessary to give it full effect. But we are dealing with compensation over which the legislature had complete control, as -was very properly held in Thompson v. Phillips, 12 Ohio St. 617, and the question is, could the completely uniform laws in force in February, 1861, be suspended by an enactment which puts one-half the auditors of the state upon one compensation and the other half upon another ? The act of 1862 is still more faulty. It does not fix the compensation at all. It leaves the county commissioners discretionary power to pay a large sum in addition to that specifically provided for, or nothing at all, as they see fit; so that one auditor might-get twice as much as another in counties of the same population.
    If auditors may be classified in reference to the date of their election, so may all other officers compensated by fees; and any other fixed fact would answer as well to found the distinction upon. Age would be one. All auditors above forty should receive orie compensation, and those below another. If one distinction may be made, forty may be for the same reason; and thus, in spite of the efforts of the people to secure uniformity, the state be covered with odious discriminations.. See 2 Const. Con. Debates, 561.
    The question I am considering has nothing to do with the numerous laws passed for the government of municipal corporations. The laws under consideration relate to counties and their organization, and to the compensation of an officer common to them all. I do not doubt that a salary might be provided for auditors graduated upon population; but I do deny that a part can be compensated with salaries and part with fees, or that a part, can be given one salary, and, under exactly the same conditions, the other part another. In other words, different regulations may be prescribed for different things, but no two regulations for the same thing. These acts do that very thing; they attempt to give a different compensation to auditors in counties having the same population and performing the same duties.
    Under the rule laid down in 2 Gray, 98, and adopted by this court in 5 Ohio St. 507, if these acts contain unconstitutional provisions, *they are so connected with all other parts of the acts as to [17 invalidate the whole.
    
      O. Bowen, for defendant in error:
    1. Drawing money from the county treasury by Cricket, as auditor, without the authority and not upon the order of the county commissioners, constitutes a breach of his official bond.
    If any county auditor shall misapply any money which shall come into his possession, the commissioners shall cause suit, etc. S. & C. 96, sec. 3; Ib. 96, 97, sec. 4.
    The- auditor is clerk to the board of commissioners. S. & C. 97, 98, secs. 10, 13.
    Fee bill of auditor under act of March 30, 1859. S. & C. 636; Act of May 1, 1838, Ib. 637.
    The act of February 7, 1861, repeals the above acts. 58 Ohio L. 8. This act gives to the auditor a compensation based on male inhabitants over twenty-one years of age. Such compensation to* be paid out of the county treasury on the order of the county commissioners, does not apply to auditors then in office.
    The act of May 1, 1862, also gives a compensation based upon, the same principle, to be paid on the same order of the county commissioners. 59 Ohio L. 104.
    This last-named act limits the compensation of county auditors* who may have entered'upon the duties of their office on or after-October 1, 1861, to the compensation provided in the act of February 7, 1861. 59 Ohio L. 105, sec 3.
    County commissioners. S. & 0. 243, secs. 1, 7, 11-13, 16, 17, 22, 30, 38.
    2. To the proposition that the act of Cricket complained of was-not a “ legitimate ” act of his as auditor, but was an individual act, for which he is liable, and- not the bail, it may bo replied :
    The bond given by Cricket as auditor is “ conditioned for the-faithful discharge of the duties of his office.” S. & C. 96, sec. 2. .
    If the auditor shall fail to make settlement, or fail to pay over-18] all money with which he may stand charged, at the time *and-in the manner prescribed by law, or shall misapply any money-which may come into his possession in the discharge of his official duties, it shall be the duty of the county commissioners to cause suit to be instituted against such auditor and his sureties. Id., sec. 3.
    In the cases here given, it is made the duty of the commissioners-to sue upon the bond. If it be claimed that the case made in the pleadings, in this instance, does not fall within the foregoing provision, it may be very safely replied that it was an unfaithful discharge of his duties (if not a willful disregard of them) as an .officer, to issue orders upon the treasury of the county, and, by means thereof, obtain money for his individual benefit, to which-, he had no right, and for doing which the law gave him no authority. His issuing of warrants upon the treasury, without the sanction of law, was a gross breach, of his duty and of his official bond.
    3. While it may be true that the auditor’s warrants are prima facie evidence of their accuracy, it was the gist of this action in the-court below, that the warrants of Cricket were issued and the money obtained by him without authority of law, and the verdict was against him.
    4. We deny that the acts of the commissioners may properly be shown by parol evidence. The statute requires the auditor, as clerk of the board of commissioners, to keep an accurate record of their corporate proceedings. S. & C. 97, sec. 10. The commissioners are a body corporate. S. & C. 244, sec. 7.
    5. As to the construction of the acts of 1861. and 1862. As already shown, Cricket, from and after May 1, 1862 (59 Ohio, 105, sec. 3), was limited to a compensation, as auditor, based upon population of male inhabitants over twenty-one years of age, accoiding to tho provisions of the act of February 7, 1861, and no more. It was tho manifest intention of the legislature to abolish the system of allowing fees, and to give in place thereof an annual compensation. This the legislature had the power to do. 12 Ohio St. 617.
    There having been no proof that the sums drawn from the-treasury by Cricket were “ regularly allowed ” by the commissioners, *his request of the court to instruct the jury upon that state [19‘ of fact was outside of the case before them.
    But if the commissioners had made such an order, it would have-been without authority of law, and would have given Cricket no-right to the money, and he -could not set up as a defense to an action against him to recover money thus obtained, the illegal conduct and breach of duty of the commissioners. Constitution, art. 10,. sec. 5; Auditors’ Act, S. & C. 98, sec. 13; Commissioners’ Act, S. & C. 251, sec. 28.
    The act of February 7, 1861, points out the mode of payment of the compensation of auditors for their services. “ Such compensation to be paid out of the county treasury, on the order of the county commissioners.” 58 Ohio L. 7, 8, sec. 1. The auditor had no right, nor could the commissioners give him any, to issue his own warrant for his own compensation. That could be done only upon the order of the commissioners — not a verbal order — not a suggestion or mere acquiescence of the commissioners, but by their written order —by an instrument which would justify the treasurer in disburs‘ing money upon it, and which he could use as a voucher in the •settlement of his accounts with the proper authority. No such -order was made by the board ; no such order was used by Cricket •to obtain the money which he now wrongfully holds. But he got the money upon his own warrants, issued in the usual form, witih•out any allowance by the commissioners. The^manner of drawing «money out of the county treasury can not be overlooked or disregarded, oven if it should be found that the party getting it had a ■clear right or demand for the same against the county. It must be obtained according to the provisions of the law, and not otherwise. In this case, however, not only is the law wholly disregarded and set aside by Cricket, but he draws money in a fraudulent way, and applies it to his own use, when he has neither any legal nor ■equitable claim to it.
    I have not had the benefit of a brief from the plaintiffs in error. None has been shown me.
   White, J.

The errors relied on in this case arise on the giving iand refusing instructions by the court to the jury.

'20] *The first question in order, for consideration, is to ascertain by what statute the compensation of Cricket as auditor is reg•ulated.

The plaintiffs in error claim that the statute in question is the ract of March 30, 1859, 1 S. & C. Stat. 636, while the defendant in •error insists that the rule of compensation is prescribed by the act -of May 1, 1862, 59 Ohio L. 104.

The court below adopted the view last named.

The question depends upon the proper construction of the repealing section of the act of 1862.

Under the act of March 30, 1859, the rule for compensating -county auditors was by foes. By the act of February 7, 1861, 58 •Ohio L. 7, this rule was changed, and the compensation, above a •minimum sum applicable to all the counties, was graduated according to the adult male inhabitants of the several counties.

The object of this act was to reduce the compensation allowed by the act of 1859 ; but by section 3, the new rule was made applicable only to those coming into office on or after October 1,1861, .auditors in office before that date being compensated by theoldrule.

The act of May 1, 1862, adhered to the principle introduced by •the act of February 7, 1861-, of graduating compensation according to population, and was intended to effect a further reduction in the compensation of county auditors.

The effect of this act was to provide for two classes. The auditors in office at the time of the passage of the act, constituting the first class, were, thereafter, to be compensated according to the rule prescribed by the act of 1861; and those coming into office after the passage of the act, and constituting the second class, were to be compensated by the new rule prescribed in the act. Though the provisions in the third section are awkwardly framed, this, it seems to us, is the clear meaning of the terms employed.

The court, therefore, in our opinion, did not err in its instructions as to the statutes by which the compensation in question was regulated.

It is, however; contended for the plaintiffs in error, that the act of 1861 and the act of 1862, are in conflict with sections *20 [21 and 26 of article 2 of the constitution, and are therefore void.

Section 20, so far as pertinent to the question before us, provides that “the general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers,” etc.

The duty enjoined by this section in regard to fixing the compensation of officers, does not require the general assembly to fix the sum or amount which each officer is to receive, but only requires that it shall prescribe or “fix ” the rule by which such compensation is to be determined.

The rule of compensation adopted by the act of 1859, was by fees for the particular services performed. The result of this uniform rate of fees was either to make the compensation of officers inadequate in the small counties, or exorbitant in the larger and more populous ones; for, if the rate was sufficiently high to yield in the aggregate an adequate compensation in the small counties, where there was but little business, though the office required all the time of the officer, the same rate in populous counties where there was much business, would produce a compensation unreasonably high. To obviate this evil, the legislature, under the idea perhaps that the rule was required to be uniform throughout the state, adopted the mode prescribed by the acts of 1861 and 1862, graduating compensation above a certain sum according to population, and vesting in the commissioners in certain eases the power of making discretionary allowances; but neither under the last-named acts, nor under the act of 1859, was the amount of compensation fixed by law. All that was done in either case, was to fix or prescribe the rule by which the compensation was to be — and to a certainty could be— ascertained.

The part of section 26 claimed to be infringed, provides that “all laws of a general nature shall have a uniform operation throughout the state.”

It is urged that the acts in question divide county auditors into-at least two classes, and provide a different rule of compensation for 22] each class, and that consequently, in their ^operation, these-laws lack the element of uniformity which this section of the constitution requires.

The effect of the act of 1862, as already remarked, is to prescribe one rule of compensation for auditors in office at the time of its passage, and another for those coming into office afterward. Each rule, has a uniform operation to the extent that it operates at all.

"Without undertaking to define the scope and operation of this-provision of the constitution, it seems to us there is no invasion of it by the act in question.

It clearly was not intended to require that an act providing a new rule of compensation of officers subsequently coming into office should be invalid, unless it also applied to the future services of existing officers.

If such officers were paid by salaries, the legislature could not affect them during their term (Thompson v. Phillips, 12 Ohio St. 617); but if they were compensated otherwise, whether their compensation should be governed by the new rule or not, was a question of legislative discretion.

There is nothing in the constitution prohibiting appropriate local legislation; and for myself I will say, that it seems to me the amount of compensation to be attached to a local office is a question in its-nature local, and that a law to regulate such compensation can not properly be regarded as a law of a general nature.

The remaining question is, whether the acts of Cricket complained of constituted a breach of his bond. We think they did.

The second section of the act prescribing the duties of county auditors,” passed April 4, 1859 (S. & C. Stat. 96), requires the bond to be “conditioned for the faithful discharge of the duties of his. office.”

Section 4 of the same act authorizes suit to be instituted “ for the: ■use of the state, county, or any party or persons injured by the misconduct in office of the auditor, or by the omission of any duty required of him by law.”

Section 3 specifies certain cases of delinquency in which it is made the duty of the commissioners to institute suit on the bond, and when such suit shall have been commenced, *they are author- [23 ized to remove the auditor from office. The breach alleged in this case is not one of those specified in this section; but the object of the section is not to limit the remedy on the bond to the specified cases, but to make it the duty of the commissioners, in the cases named, to put the bond in suit. The question in this case, therefore, is unaffected by this section.

The acts of 1861 and 1862, supra, provide that the compensation of the auditor is “ to be paid out of the county treasury on the order of the county commissioners.”.

The order here meant is a written order, the original, or an authenticated copy of which, will constitute a warrant and a voucher to the treasurer for the money paid in pursuance of it. It is admitted in the bill of exceptions that, in this case, no such order existed or had ever been given.

The money was obtained on the auditor’s own warrant drawn as ■auditor, and which he was not. authorized by law to draw or use for such purpose. The warrant purported to be an official act; it was drawn under color of office, and constituted the means by which the money was obtained from the treasury. If no more money had been obtained than was due the auditor, though there would have been a misfeasance in the mode of obtaining it, there would have been no substantial injury. But, to the extent the money obtained exceeded the amount due, there was substantial injury for which the bond, in our opinion, afforded a remedy.

But the action of the auditor in drawing the warrant and obtaining the money is sought to be justified to the extent of defeating any liability upon the bond, by section 13 of the act of April 4, 1859. S. & C. Stat. 98. This section provides : “No claims against the county shall be paid otherwise than upon the allowance of the county commissioners upon the warrant of the county auditor,” etc. And the charges asked seem to be founded on the supposition that the language quoted applies to the auditor’s claim for compensation. But this is a mistake. The language is broad enough to include it, but it clearly was not intended to do so. The mode of obtaining bis compensation was specially provided for by the act 24] to regulate the fees of county auditors” (S. & C. *Stat. 637), until that act was repealed by the third section of’the act of February 7, 1861. The repealed act referred to provided that: “The auditor shall in all cases be paid his fees out of the county treasury, on the order of the county commissioners, who shall be satisfied of the correctness of the account rendered by the auditor; and the' same shall be authenticated by his oath, and filed with the county treasurer.” On the repeal of this act by the act of 1861, the new mode prescribed was that the auditor’s compensation should “ be paid out of the county treasury on the order of the county commissioners.”

Section 13, of the act of April 4, 1859, has therefore no application to the compensation due auditors for their official services.

To guard against being misunderstood, it is proper to say we do not mean to hold that, if the money had been regularly obtained, by the auditor, the mistake of the commissioners in ordering the-payment of an excessive amount would have laid the foundation! for an action on the bond.

Our ruling is confined to the case before us, and is founded upon; the unauthorized action of the auditor in drawing the money.

The instructions to the jury were, perhaps, not literally correct;. yet, in view of our holding as to the law, the instructions, as applied to the facts of the case, could not have prejudiced the defendant below.

Judgment affirmed.

Day, C. J., and Brinkerhoff, Scott, and Welch, JJ., concurred.  