
    THE RULE APPLICABLE TO A PUBLIC OFFICER AS TO UNUSUAL EXPENSES.
    [Circuit Court of Mercer County.]
    Charles A. Kloeb, Auditor, v. Mercer County Commissioners.
    Decided, November Term, 1903.
    
      Office and Officer — Duty of an Officer as an Agent of the Public — In the Incurring of Expenses in the Interest of the Public — County Auditor — County Commissioners — Mandamus.
    1. A public officer is an agent of tbe public, and is governed as to tbe 'expenses wbicb be may in good faitb incur by tbe same rule that would be applicable to like acts of a private agent, or of a guardian nr administrator, and is entitled to be reimbursed tberefor.
    2. A county auditor refused to draw a warrant on the order of tbe county commissioners, in payment for advertising 'the rate of taxation in that county, on tbe ground that tbe advertisement, if set up in compact form and charged at the rate fixed by Section 4366, would amount to $330 instead of $776, tbe charge made by tbe publishers and ordered paid by tbe commissioners. In resisting in tbe courts payment of tbe account as allowed by tbe commissioners, tbe auditor incurred legal expenses, wbicb were admitted to have been reasonable in amount. These expenses tbe commissioners refused to pay. Held: That tbe auditor was justified in bis action, and that tbe bill for bis expenses in so doing should have been allowed by tbe commissioners, and judgment tberefor is given.
    Norris, J.; Mooney, J., concurs; Day, J., dissents.
   This case is submitted in this court on petition in error to the common pleas of this county together with the finding of facts and conclusions of law of that court. The action was an appeal to the common pleas court from the board of county commissioners of Mercer county. In substance these are the facts:

On January 16, 1903, Chas. A. Kloeb, as auditor of Mercer county, presented to the board of county commissioners at a regular session of said board his account for expenditure by him, made in resisting certain mandamus proceedings brought against him as such auditor. Pie resisted these eases up to and in the Supreme Court of Ohio. One ease so brought against him was on relation of A. P. J. Snyder. The other was on relation of Gilburg and Chapman. Plis account is for money expended and the employment of attorneys and court costs including the making and printing of the record. The bill in the aggregate amounts to $486.65. Snyder was the editor of the democratic newspaper and Gilburg and Chapman were the editors and publishers of the republican newspaper. Both papers were of general circulation in Mercer county, and at the request of the county treasurer of Mercer county each printed for six consecutive weeks the rate of taxation in Mercer county for the year 1898. About November 4, 1898, at a special session of the county commissioners each paper presented to the board of commissioners a bill for the publication of said tax rates. Each of said bills was for more than $388.

The bills were taken under advisement by the board of commissioners and passed to the regular session. The bills were referred by the board to Kloeb, as auditor, for his examination and he was directed to measure the printed matter and ascertain the number of squares of straight printed matter and the number of squares of tabular or ruled work necessary to advertise said notice, and report the result of his examination to the board. Upon that examination he ascertained that said printed matter, for which said bill aggregated $776, had been presented at the rate fixed by Section 4366, Revised Statutes, and if set up in compact form as directed by law would not amount to exceed, but would amount to less than $165 for each paper, aggregating the total sum of $330, and the auditor so reported to said board.

Afterwards on November 7, 1898, the commissioners allowed on each of said bills the sum of $300, aggregating $600, and directed said Kloeb as such auditor to issue warrants on the treasurer of Mercer county for the sum of $300 to each, payable out of the county fund. This finding of the board was accepted by said publishers and no appeal by them or either of them was taken from this allowance.

At said date, November 7, 1898, each of said publishers presented to said auditor this order of the board of commissioners, and demanded each, a warrant for $300 on the treasurer of Mercer county. And plaintiff in error as such auditor refused to draw said warrants.

Kloeb, at the time he refused to draw the warrants, in good faith believed that there was no authority of law for said board to issue an order in payment for the unnecessary space charged in the said bills, for the publishing of said rates, and believed in good faith that all that the commissioners were required to do was to measure and estimate the size of the printed matter, and that when so measured and estimated and computed by the rate fixed by Section 4366, Revised Statutes, all else and over was illegal, excessive and void. On November 7, 1898, no certificate was filed disclosing that there was any money in' the treasury to the credit of the county fund; nor was there a certificate filed that there had been a levy made to the credit of said fund, and placed upon the duplicate in anticipation of collection and not appropriated for other purposes. Such levy however, had been made in sufficient amount and was on the duplicate for collection for the year 1898 to pay all the expenses of the county including said bills; but at said date, November 7, 1898, there was no money in the treasury to the credit of the county fund.

Said auditor in good faith believed that from all this he had no right to issue a warrant on the treasurer and charge the same to the county fund. And being of such opinion he resisted the issuing of said warrants in the Court of Common Pleas of said Mercer County and in the circuit and supreme courts. In doing so, he was put to the expense of $486.65. It is conceded that these charges as to amount are reasonable, and that in so resisting the payment of said orders, and in the incurring of this expense, he was acting in good faith and as he understood it, in the honest discharge of his duties as such auditor, and believed he was protecting the interest of Mercer county.

Upon these facts the common pleas court found for the defendant in error, the county commissioners of Mercer county, Ohio, that:

“The said board did not err in refusing to allow said claim for said expenses in resisting the payment of said orders by refusing to issue said warrant; that there is no authority of law authorizing the county auditor to resist the issuing of an order on the county treasurer, when so ordered by the county commissioners. ’ ’

The action of plaintiff in error was dismissed and the costs were adjudged against him. And upon overruling his motion for new trial the court entered its judgment on said finding.

The plaintiff in error assigns as reason for the reversal of this finding and judgment of the common pleas as follows:

First, that the court erred in overruling his motion for a new trial; second, the judgment was for defendants in error when it ought to have been for plaintiff in error; third, the finding and judgment are contrary to law; fourth, the court erred in the judgment rendered upon the facts found; fifth, the facts found do not warrant the judgment; sixth, the judgment is inconsistent with the facts found by the court; seventh, from the facts found the judgment should have been for plaintiff for the amount of his account; eighth, and other errors apparent on the face of the record.

While a county auditor “by virtue of his office, shall be the secretary of the county commissioners, except as otherwise provided by law, he shall aid them, when requested, in the performance of their duties; he shall keep an accurate record of all their proceedings; and shall carefully preserve all documents, books, records, maps, and papers required to be deposited and kept in his office” (Section 1021, Revised Statutes). Yet a county auditor is a public officer, and an agent of the people, and in this sense he is in nowise the mere clerk of the board of county commissioners. Independent of the commissioners and aside from that board and its powers and its duties, the auditor has official duties of paramount importance that he may not willfully neglect to perform, for the faithful discharge of which he stands directly responsible to the people, and for the willful neglect of which he must atone by forfeiture of office and punishment at the hands of the criminal law.

The county auditor is not the disbursing officer of the county, that is to say, he is not the payer out of the public moneys of the county; but he is the auditor of the county treasury. Except money arising from the tax duplicate he certifies all moneys into the county treasury and credits the amounts to their respective funds. He keeps an account current with county treasurer, showing all moneys paid into the treasury, when paid, to what account, and to what fund paid; and of all moneys paid out, and from what funds paid out. Except money due the state, which is paid on the warrant of the state auditor, every dollar paid out of the county treasury is paid upon the warrant of the county auditor. In performing these duties he is performing official duties — public obligations —for the faithful discharge of which his offical bond, and his body standing for his oath of office, must respond. He does not act as a mere machine, without consciousness, duty, or responsibility, only to place his signature to warrants which will cause public moneys to leave the public treasury; he is not a mere automaton, there for the purpose of writing his signature to warrants on the public treasury when the button is touched. But concerning all these duties he has the right to act, and is required to act faithfully. It is his duty to exercise his judgment, concerning the official act which he is called upon to perform, to a degree commensurate with the responsibility. And it is his duty to act in good faith and with the prudence and integrity which an honest man of ordinary prudence would exercise under like circumstances; and if he willfully fails in this, then he willfully fails to perform a duty required of him by law, the penalty of which is forfeiture of office and criminal prosecution and punishment.

The very words of Section 1031, Revised Statutes, if he “willfully fails to perform any duty required of him by law, he shall, in addition to criminal prosecution therefor, forfeit his office,” imply the exercise of judgment guarded by that prudence as a public officer which confirms good faith — “If he willfully fails,” says the law.

It is the official duty of the county auditor to draw his warrants on the county treasurer for the payment of any claims against the county allowed by the board of county commissioners, when the proper order or voucher is presented therefor. It was the duty of this auditor to issue the warrants in question in the mandamus proceedings. The court has so decided.

It was his duty to issue the warrants so far as the issuing of the warrants was a mere executive act, performed as an official duty in obedience to the mandate of legal authority. In this respect his duty was a duty subservient and ministerial. But it is going very far to declare that a public officer, who is the agent of the people, placed at the door of the public treasury, mlay not legally, and with effect as an official duty,- lift his voice in protest and objection, to that which he in good faith, and in the exercise- of his judgment as a prudent and honest agent of the people, deems to be an unlawful depletion of the public treasury; and it is going just as far to say that an order of a board of commissioners upon the auditor, to draw his warrants on the treasurer in favor of a party who is more than satisfied (and from which no appeal is taken or can be taken, because there is nobody to take the appeal), has the effect of a judgment at law, and can not be questioned at any place along the line, from the hands of the board to the vaults of the treasury.

It is true as said in State v. Darke Co. (Aud.), 43 Ohio St., 311, 312:

“The performance of an official act by a public officer depends upon his legal duty and not upon his doubts; and where his duty is clear, its performance will not be excused by his doubts * # *, however strong-or honest they may be.”

This announcement, that the performance of clear official duty does not rest and is not dependent upon the doubt of the officer as to the propriety of its performance, is not new, and thus the doubts of an officer, as mere doubts, however strong or honest they may be, avail nothing. But that case falls far short of declaring that conditions may not present themselves which would justify a county auditor, and compel him, in discharge of duty required of him by law, to give ear to his prudence, judgment, and integrity as an agent of the people, as distinguished from subservient performance in blind obedience to authority in its nature judicial.

Not pertinent to the facts at bar but pertinent to the principle urged and pertinent to its application in this ease, would it not be willful failure of a duty required of him by law if a dishonest county auditor conspired with a dishonest board of county commissioners to. loot the county treasury of the public money; and in obedience to orders of the board in that behalf, for the payment of pretended claims which he knew were false and fraudulent, he drew his warrants as fast as the orders were made, and thus, under the guise of official duty, plundered the people? Yet it is said that things akin to this have been done. But if the auditor was not a beneficiary of the fraud, and simply had acknowledged that the claims were a pretense, and the orders were the act of a conspiring board, made for the purpose of placing money from the public treasury into the hands of a false claimant, would not the auditor who knew this, and issued his warrant with such knowledge, willfully fail to perform a duty required of him by law? Surely no court would declare that he made breach of duty if he refused.

It may be said that the right of the claimant relator to the writ of mandamus must be clear, and in that behalf .would be involved the honesty or the vice of his claim. But against whom would the action lie unless the official, the auditor, refused to perform the act which is urged to be to that degree ministerial, that it precludes any exercise by him of his judgment, prudence, good faith and integrity as a public servant.

In the ease of Ryan v. Hoffman, 26 Ohio St., 109, in the opinion at page 123, the court does and did recognize, and take into account the sufficiency or insufficiency of the objection made by an officer to the performance of a clear ministerial duty, as an element in determining whether or not the duty should be performed.

And in the case of State v. Yeatman, 22 Ohio St., 546, it is held that an auditor may defend against an application for a writ of mandamus to compel him to issue a warrant on the treasury upon an allowance and order of the commissioners, by showing that the order was unauthorized and that the commissioners had no authority to make it.

So it would seem that though his duty be not dependent upon his doubts, however honest and strong they may be, yet he has the right to doubt, to exercise his judgment, guarded by that prudence, good faith and official integrity, which would warrant a prudent man in his official position under like circumstances, in the conclusion that his objection and reason for refusal to issue the warrant were justified by law and would be ratified by the courts.

In the case at bar this auditor was required by the board of commissioners to measure the claims of the publishers by the rules fixed by law and to compute the space by the rate fixed by Section 4366, Revised Statutes. Tie did so, and found the amounts of each bill as thus measured to be less than $165, in the aggregate $330. He so reported to the board. In the face of this report, which is found to be true, the board allowed each claim in the amount of $300, aggregating the sum of $600, $270 in excess of the true measurement as appears in the finding of facts by the common pleas court. For those sums he refuses, as auditor, to draw the warrants on the treasury. It is also found that he acted in all regards with the utmost good faith and in the belief that all that the commissioners were required to do, to determine the amount of such claims, was to estimate the size of the printed matter and compute by the rate fixed by Section 4366, Revised Statutes; and that all the amounts allowed in excess of the sums so resulting .were excessive, illegal and void. With this belief, and so acting in good faith upon it, he refused to draw the warrants for the sums aggregating $600 and made contest in the actions for mandamus, brought to compel him to issue the warrants; and in this action, upon the finding of facts, the court defeats his claim for the expenses of that litigation, because, and upon the conclusions of law, “that there is no warrant or authority of law authorizing the county auditor to resist the issuing of an order on the county treasury when so ordered by the county commissioners. ’ ’

Courts have held that public officers, not idly and stubbornly and in bad faith, but where reasons actually exist, or when to a prudent man, acting in good faith, and with that degree of circumspection and discretion that a prudent man under like circumstances would exercise, reasons appear to exist which are grounds for refusal to perform a ministerial act that otherwise would be a clear official duty, such public officers may make contest in the eourts against the writ of mandamus to compel him to perform. It was so held in the cases which give rise to plaintiff’s claims in this action, or else those cases would have never been.

Though the refusal of the officer to act may be in violation of official duty, which requires him to perform a ministerial obligation, the contest — the appeal to the courts, the submission of the reasons for refusal, to the law — is not of itself and in itself a transgression. It is the exercise of a right, and its exercise when in good faith, and based upon the honest judgment of a prudent man, properly discharging as seem to him, under the circumstances, the functions of his office and his duties, is not and ought not draw upon him mulctary penalty, by imposing upon the individual the expense of the litigation.

If this were true, and the payment of the expenses, and whether reimbursement was to be made, followed and was dependent upon the event of the controversy, how timid would be those whose duties it is to guard the interest of the public, and to look after the honest expenditure of the public money! If the rule were thus, the people would be disarmed and nonresistent. What officer, however strong might be his convictions that the public was being wronged, and however strong were his reasons for that conclusion, would fight the battles of the public if he knew that a mistake meant the expenditure of hundreds of dollars out of his own pocket? To enforce such proposition would seem to be against public policy. If it were the law, how could these defendants in error fare in the case here and now being decided by this court adversely to them, for presuming to exercise their honest judgment, as prudent officers and honest men. The interest of the public and good government require that it be not the law, and it is not the law.

John W. Loree, for plaintiff in error.

C. E. Marsh, for defendant in error.

A public officer is the agent of the public and he is governed, as to expenses made, with the good faith I have so often defined in this opinion, by the same rule that would be applicable to like acts of a private agent or of a guardian or an administrator, and is entitled to reimbursement therefor.

The judgment of the common pleas is therefore reversed, and giving the judgment which the court of common pleas ought to have given, the court here enters judgment for the plaintiff for the amount claimed, $486.65 and costs, and the case is remanded to the common pleas for execution.-  