
    Higgins v. The Commissioners of Logan County.
    
      Compensation of county commissioners — Personal expenses while attending hoard session not allowed hy section 897, Revised Statutes — Order on hoard allowing such expense not valid, when.
    
    1. The statute governing the compensation and allowances to a county commissioner (see section 897, Revised Statutes), does not authorize the payment of personal expenses, while attending the sessions of the hoard, nor mileage for more than one session in a month.
    2. Such expenses and mileage can not form the subject of a valid claim against the county for any amount, and an order of the hoard of county commissioners allowing them will not hind the county. (Jones v. The Commissioners, 57 Ohio St., 189, followed and approved.)
    (Decided May 8, 1900.)
    Error to the Circuit Court of Logan county.
    The board of commissioners brought suit against Higgins in the court of common pleas upon eighty-two causes of action set out in the amended petition. Higgins had himself been a member of the board from the first Monday of January, 1888, to the first Monday in January, 1894. The causes of action from one to eighty-one inclusive are on the receipt from the county treasurer by the allowance of the board for mileage and personal expenses in excess of those allowed by the statute. The causes of action do not substantially differ except as to the dates and the amounts of the allowance. The following sufficiently represents each, one of the eighty-one causes of action:
    On October 1,1892, the defendant, as such commissioner, demanded and received of the treasurer of said county, on Warrant No. 291, as and for his mileage for attending seven sessions of said board during the month of September, 1892, $6.00, and for boarding and other expenses of defendant incurred while attending said sessions, $9.80; which sums he then received out of the moneys of said county, upon the claim therefor, then fraudulently and collusively presented to and allowed by said board, with full knowledge of its members and of the defendant of the illegality thereof, in addition to his full statutory compensation, mileage and expenses by him received for said month, and which he still retains.
    The first defense in the answer interposed by Higgins has been treated as though it Avere a denial of the allegations of the petition. The second defense is as folloAvs:
    For a second answer to said petition the said defendant says that for all moneys and each of the several items mentioned in the said eighty-two causes of action set out in the petition he duly presented itemized statements of his accounts for per diem, mileage, services and expenses as aforesaid, Avliich accounts were duly submitted to and examined by the prosecuting attorney and the probate judge of said Logan county, who, as the board and court, established by law for that purpose, duly certified to and approved his said several accounts and thereupon, in each case, he submitted his said claims to the board of county commissioners of said Logan county, which board of county commissioners then and there adjudicated upon and allowed his said claims respectively, and ordered the county auditor of said county to issue warrants upon the county treasurer for the payment of same respectively; and the plaintiff and defendant in this action were parties in those several proceedings before said board and tribunal, and said prosecuting attorney and probate judge and said' board of county commissioners as such tribunal, adjudicated said defendant’s said several claims and accounts and rendered judgment in favor of this defendant thereon on the merits and the same then and there became res judicata.
    
    To the second defense a demurrer interposed by the plaintiff was sustained by the court to which there was an exception. Upon the trial the evidence offered by the plaintiff did not tend to show actual fraud or collusion on the part of Higgins with the other members of the board in the allowance of the claims. With respect to the eighty-one causes of action the defendant requested the court to instruct the jury: 1. That if the warrants in his favor were issued by the county auditor on orders of the board of county commissioners that such orders were based upon the examination and allowance by said board of itemized claims of the defendant for services, mileage and expenses claimed by him to have been rendered as county commissioner, and that a record of such allowance of said claims was duly made by the board and such allowance and record became and are judgments in law and cannot be disregarded in this proceeding and the plaintiff cannot recover. 2. That there could be no recovery in the action unless the plaintiff had established by a preponderance of the evidence that the defendant Avas guilty of actual fraud and collusion in making and presenting the claims in the petition. 3. That the fraud and collusion necessary to be established against the defendant to entitle the plaintiff to recover must consist of guilty knowledge and intentional act of the defendant in making and presenting a claim for services, mileage and expense which was in excess of the amount allowed by law known at the time to be so, and must have beén known by his associates on the board of county commissioners to be in excess of the amount allowed by law.
    These requests were refused. The instruction given upon the subject was in substance contained in the folowing portion of the charge:
    “I say to you gentlemen, that if the defendant drew moneys from the county treasury during the time sued for, either as mileage or for his reasonable and necessary expenses or both, for days while he was exclusively engaged in the office of the board in the discharge of his duties as commissioner in attending a regular or called session of the board other than mileage for one day each month, then such allowance and receipt by him of mileage or expenses therefor was illegal and in violation of the provisions of the statute of Ohio, and in contemplation of law was fraudulently allowed and received and for such illegal mileage and expenses so received and retained by the defendant the plaintiff is entitled to recover in this action.”
    The eighty-second cause of action was for moneys received by the defendant as such county commissioner as and for his mileage, boarding, car-fare and other personal expenses incurred January 10, 11 and 12, 1893, on a journey made by him to Columbus to attend a certain convention called The County Commissioners’ Association. With respect to this eighty-second cause of action the trial judge instructed the jury that no recovery could be had upon it because the county commissioners were the sole judges of the necessity of the attendance upon the commissioners’ association.
    
      Howenstine & Huston, for plaintiff in error.
    The statute requires the county commissioner’s claim for compensation to be certified to by the pros» ecuting attorney of the county, and to be approved by the probate judge, and after that to be allowed by the full board of county commissioners, before a warrant can be issued therefor- by the county auditor, or the same can be paid by the county treasurer. Revised Statutes, section 897.
    This proceeding of approval by the probate court and allowance by the county commissioners in legal effect is a judgment.
    From that judgment appeal may be taken to a higher court. Revised Statutes, section 896.
    Such judgment of the county commissioners cannot be impeached, except for fraud or collusion. Ridenour v. State, 14 C. C. Rep.; 7 Circ. Dec., 481; Commissioners v. Noyes, 35 Ohio St., 201; McCurdy v. Baughman, 43 Ohio St., 78;Van Fleet on Collateral Attack, sections 3, 15; Paragraph 314, 1 Bates Digest, page 1378; many cases there cited; Jones, Aud., v. Commissioners, 57 Ohio St., 189.
    The original petition in this case was filed May 26, 1896. It contained no charge against Higgins or his co-commissioners that any claim was made or allowed, fraudulently or collusively.
    After the original petition was filed, the decision of our circuit court, in case of Ridenour v. State, supra, was reported.
    The substance of that decision was that the allowance of a claim by the county commissioners was in effect a judgment, and could not be impeached except for fraud or collusion.
    Thereupon, on October 18, 1897, plaintiff below filed his amended petition, and incorporated therein the words charging fraud and collusion.
    This was an admission by the plaintiff that without fraud and collusion, alleged and proved, no recovery can be had. Commissioners Scioto Co. v. Gherky, 
      Wright, 493; Ridenour v. State, 14 C. C. R., 393; 7 Circ. Dec., 481; Board County Commissioners v. Noyes, 35 Ohio St., 201, 207, 208.
    Fraud must be distinctly plead: 8 Am. & Eng. Ency. Law, 653 and note 3; Bartholomew v. Bentley, 15 Ohio, 659; 1 Kinkead Pleading, section 607, page 564; Kerr on Fraud and M., p. 384 and notes and cases cited.
    If fraud must be alleged it must be proved. Stitt v. Wilson, Wright 503; Wilson v. Delorack, 3 Ohio, 290; Lake v. Doud, 10 Ohio, 415; Bohart v. Atkinson, 14 Ohio, 228; Landis v. Kelly, 27 Ohio St., 567; Kerr on F. & M., pages 382-383 and notes; Mitchell v. Dedds, 95 Am. Dec., 621; Nichols v. Patton, 36 Am. Dec., 713; Bartlett v. Blake, 58 Am. Dec., 775; Stubblefield v. McRaven, 43 Am. Dec., 502; Pearson v. Keedy, 43 Am. Dec., 160.
    
      S. II. West, for defendant in error.
    The office and compensation of the county commissioners are purely statutory, and fall within the strict rule obtaining in Ohio that fees not specially provided for by statute, cannot be charged or collected. Debolt v. Cincinnati Township, 7 Ohio St., 237; Anderson v. Commissioners, 25 Ohio St., 13; Jones, Aud., v. Commissioners, 57 Ohio St., 189.
    By the terms of section 897 the plaintiff in error was limited in his legal claims for mileage for attendance on sessions of the board, to one session per month : and in his legal claims for expenses paid out, to expenses incurred in attending to business of the county pertaining to his office, other than attending sessions of the board, and in attending to business calling him from the county.
    Two classes of compensation paid out to Higgins are sought to be recovered:
    
      1. Mileage for attending more than one session of the board in any single month.
    2. Higgins’ personal expenses, boarding, etc., incurred while attending the same sessions. Neither of these classes of compensation is provided for by section 897; both are, therefore, illegal, and the amended petition, which recites the facts showing them to be so, their payment to plaintiff in error on accounts fraudulently presented and allowed, and his retention of the fees, in addition to his full statutory compensation, states a case against him.
    This defense sets forth the approval of certain statements of account containing the various items of charge mentioned in the amended petition, by the prosecuting attorney and probate judge of the county, and their regular alloAvance by the board of county commissioners, pleading these facts as a final and conclusive adjudication of the claims, behind which the county cannot noAV inquire, and which forbids any recovery of these items from the defendant below, whether they were originally legal or illegal.
    The charges of the defendant below being “wholly illegal,” being “demands illegal because of being upon a subject which can admit of no claim,” as stated in the opinion in the case of Jones, Aud., v. Commissioners, 57 Ohio St., 216, their allowance by the board of county commissioners falls within the rule laid down in the syllabus of that case.
    The Jones case and that at bar being identical as to their essential facts, the illegal character of the claims allowed, the manner and form of allowance by the board, etc. We submit that that case is decisive of all questions made in this as to the sufficiency of the second defense. Richland Co. v. Miller, 16 So. Car., 224; English v. Chicot Co., 26 Ark., 462 Carroll Co. v. Roberts, 60 Mo., 404; Ousteroudt v. 
      Rigney, 98 N. Y., 222; Winchester v. Commissioners, 22 Atl., 1075; Herman on Estoppel and Res Ad judicata, section 437.
    Each of the 81 causes of action before the court seeks to recover mileage and expenses paid out for attending more than one session of the board in a single month — a claim which is “wholly illegal”— illegal and unwarranted in every part, to its full extent.
    But even if the claims, as passed on and adjudicated by the board, in addition to items not allowed, by section 897 and therefore illegal, contained other charges proper and legal, it is submitted that the allowance of the entire claim in such form would not operate to validate any portion of the claim, or to prevent the recovery of that part or those items not warranted by law.
    To give this effect to the allowance of such a claim would fritter away the entire benefit and protection of the decision. It would only be necessary, in order to avoid its effect, to include in a claim made up of many illegal items, one which was authorized by law, and have the whole allowed as an entirety.
    The allowance of the board in the supposed case, which, however, is not the case presented by the record, is final unless appealed from, only as to those items of charge authorized by statute; as to all others —distinct items of illegal overcharge — it is a nullity, because rendered Without jurisdiction. Bigelow v. Forrest, 76 U. S., 9 Wall., 339; Ex Parte Lange, 85 U. S., 18 Wall., 163; Windsor v. McVeigh, 93 U. S., 274; Cornell v. Williams, 87 U. S., 20 Wall., 250; Ex Parte Reed, 100 U. S., 13; United States v. Walker, 109 U. S., 258; Gilliland v. Sellers, 2 Ohio St., 223; Spoors v. Coen, 44 Ohio St., 497; Black on Judgments, section 532.
   By the Court :

The compensation of county commissioners is fixed by section 897 of the Revised Statutes. Its material provisions are as follows: “Each county commissioner shall be allowed three dollars for each day that he is employed in his official duties, and five cents per mile for his necessary travel for each regular or called session, not exceeding one session per month * * * . ■ Each commissioner * * * for his services wh'en necessarily engaged in attend-, ing to the business of the county, pertaining to his office under the direction of the board, and when necessary to travel out of the county, shall be allowed in addition to his compensation and mileage as herein-before provided, any other reasonable and necessary expenses, actually paid in the discharge of his official duty.” The recovery in this case was for moneys received by the plaintiff in error as a county commissioner in excess of any allowance that might lawfully be made to him by the terms of this section, and the claims should therefore not have been allowed to him by the commissioners.

The questions which arise on the demurrer to the second defense and on the refusals of the trial court to instruct the jury are all determined adversely to the claim of the plaintiff in error in Jones v. Commissioners, 57 Ohio St., 189. Further discussion of the subject is unnecessary.

The sufficiency of the eighty-second cause of action is not before us, and our judgment will not be regarded as an approval of the instruction which the trial judge gave with respect to it.

Judgment affirmed.  