
    The State, ex rel. Lyne, v. Kennedy et al.
    
      Office and officers~S'alary law—County recorder not entitled to additional compensation, when—Sections 2977 to 3004, General Code —County recorder and sureties jointly liable—To suit on bond for money so received, when.
    
    1. The salary law, Sections 1296-11 to 1298, Revised Statutes (now Sections 2977 to 3004, General Code), which commands that the county recorder shall receive as public money for the sole use of the county, and pay into the county treasury quarterly, all fees, costs, percentages, penalties, allowances and perquisites of whatever kind collected by his office as compensation for services, and that such officer shall receive out of the general county fund, a designated annual salary, which shall be instead of all such fees, etc., and all other perquisites which such officer may collect, forbids the recorder to retain for his own use and benefit any compensation awarded him by the county commissioners for making general indexes under favor of Sections 1154 and 1158, Revised Statutes (modified in Sections 2766 and 2780, General Code).
    2. A county recorder who fails to pay over to the county treasurer, and appropriates to his own use, any money so collected and received by him, is liable jointly with his official sureties, to a suit upon his bond for the recovery of the money so retained, with interest from the end of the quarter in which such funds were collected.
    (No. 13811
    Decided March 17, 1914.)
    Error to the Circuit Court of Morgan county.
    The relator, as prosecuting attorney of Morgan county, prosecutes this action for the use and on behalf of the county, under favor of Section 2921, General Code. He alleges that on the 7th of November, 1905, the defendant Kennedy was duly elected county recorder for the term of three years, beginning on the first Monday of September, 1906; that he duly qualified by giving bond “for the faithful discharge of his duties as such officer during the term aforesaid,” with his codefendants as sureties. The recital in the bond is that, “Whereas the said C. W. Kennedy was [on the date first named] duly elected to the office of county recorder of Morgan county, Ohio, to hold his office for three years, beginning on the first Monday in September next after his said election, and until his successor is chosen and qualified.” He continued to act as such recorder till September 5, 1909. The relate/’ further alleges that Kennedy as recorder drew out of the funds in the county treasury on November 7, 1908, upon a bill theretofore allowed by the county commissioners, $100 for the quarter ending December 21, 1908, for services rendered as county recorder in making a general index of mortgages, in books provided for that purpose by the county commission-ers; that he failed to pay and still refuses- to pay into the county treasury, according to law, the said $100, whereby the condition of his bond has been broken and he and the other defendants have become and are indebted to the state for' the use and the benefit of the county, in the sum of $100 with interest from December 31, 1908. A second cause of action is set forth in the same language, for $100 drawn for the quarter ending June 30, 1909, and a third cause of action for $102.60, drawn for the quarter ending September 30, 1909. The defendants demurred to all three causes of action.
    The court of common pleas sustained the demurrer and dismissed the petition, and the circuit court affirmed the judgment. Error is prosecuted here to reverse the judgment.
    
      Mr. T. E. ■ McElhiney and Mr. John Q. Lyne, prosecuting attorneys; Mr. Timothy S. Hogan, attorney general, and Mr. N. J. Weis end, for plaintiff in error.
    
      Mr. M. E. Danford and Mr. Charles H. Fouls, for defendants in error.
   Wilkin, J.

The question raised by the demurrer is whether, by the chapter of the General Code entitled “Salaries of County Officers,” the recorder is denied extra compensation above his annual salary for making the general index described in the petition. The petition recites that “Said recorder entered in said general index to mortgages, under the appropriate heads, the names of the parties to said mortgages, alphabetically arranged, both as to surnames and given names, the number and page of the volume where the mortgage is recorded, the number of acres conveyed, the range, township, section and subdivision where the property conveyed is located, the consideration of such conveyance and the date of cancellation.” The defendants contend that this describes an index to the mortgage records only, and not a general index to the records of all the real estate in the county, as defined by Section 2766, General Code. Instead of that section, they should have referred us to Section 1154, Revised Statutes, which was the law in force at the time of the transaction, as follows:

“In any county where, in the opinion of the county commissioners, the same is needed, and they so direct, the recorder shall, in addition to the alphabetical indexes, make, in books prepared for that purpose, general indexes to the records of all the real estate in the county, by placing under the heads of the original surveyed sections or surveys, or parts of a section or survey, squares, subdivisions, or lots; on the left page of such index book, first, the name of the grantor or grantors; second, next to the right, the name of the grantee or grantees; third, the number and page of the record where the instrument is found recorded; fourth, the character of the instrument, to be followed by a pertinent description of the property conveyed by the deed, lease, or assignment of lease; and on the opposite page, in like manner, all the mortgages, liens, or other incumbrances affecting said real estate; and for his services in making such description and noting incumbrances, he shall receive for each tract described five cents, in addition to his other fees.”

The defendants say that the legislature understood that some counties might not want the extensive and costly index thus provided for, and therefore by Section 2767, General Code, provided for other indexes, and by Section 2780 authorized the county commissioners to fix the recorder’s compensation for making the same at five cents for each complete entry; and they say this work was done under said sections.

They argue that this was not the ordinary work of the office covered by the salary, that the recorder might have refused to do it and that the commissioners could not have compelled him to do it for nothing. And so they conclude that the recorder was entitled to draw from the county treasury and retain the several installments of pay which were allowed him by the county commissioners for this extra work.

Now let us examine the so-called “salary law.” It declares:

Section 2977, General Code, “All the fees, costs, percentages, penalties, allowances and other perquisites collected or received by law as compensation for services by a county auditor, county treasurer, probate judge, sheriff, clerk of courts, or recorder, shall be so received and collected for the sole use of the treasury of the county in which they are elected and shall be held as public moneys belonging to such county and accounted for and paid over as such as hereinafter provided.”

■ “Section 2989. Each county officer herein named shall receive out of the general county fund the annual salary hereinafter provided, payable monthly upon warrant of the county auditor.”

■ “Section 2995. Each recorder shall receive sixty dollars for each full one thousand of the first fifteen thousand of the population of the county, as shown by the last federal census next preceding his election ; fifty dollars per thousand for each * * * second fifteen'thousand of such population; forty dollars per thousand for each * * * third fifteen thousand of such population,” etc.

• “Section 2996. Such salaries shall be instead of all fee«, costs, penalties, percentages, allowances and all other perquisites of whatever kind which any of such officials may collect and receive.

“Section 2983. On the first business day of April, July, October and January, and at the end of his term of office, each such officer shall pay into the county treasury * * * all fees, costs, penalties, percentages, allowances and perquisites of whatever kind collected by his office during the preceding quarter or part thereof for official services, which money shall be kept in separate funds and credited to the office from which received.”

•• “Section 2987. The deputies, assistants, clerks, bookkeepers and other employes of such offices shall be paid upon the warrant of the county auditor, from the fees, costs, percentages, penalties, allowances, or 'other perquisites or. sums of whatever kind collected and paid into the county treasury and credited by the treasurer to the fee fund of such offices.”

The failure to pay over to the county treasury the quarterly installments mentioned in the petition, the prosecuting attorney alleges to be a violation of the recorder’s official duty and a breach of his bond. The defendants, however, seek shelter under the language of Section 2978: “Each probate judge, auditor, treasurer, clerk of courts, sheriff and recorder, shall charge and collect the fees, costs, percentages, allowances and compensation allowed by .law, and shall give to the person making payment thereof an official receipt * *

They would have us note the phraseology of the two sections, Sections 2977 and 2978, General Code. The former is, “all the fees, costs, percentages, penalties, allowances and other perquisites collected or received by law” and the latter is, “allowances and compensation allowed by law;” and in this connection they refer to Section 3000: “No such county officer shall make any reduction, abatement, or remission of any fees, costs, percentages, penalties, allowances or perquisites of any kind required by law to be charged and collected by him.” They say the legislature had in mind fixed charges , or . fees prescribed by law when it enacted Sections 2977 and 3000, and not the contract price provided in Section 2780, which was at the time Section .1158, Revised.Statutes, thus; “The recorder for services directed to be performed by the commissioners * * * shall receive such compensation as the commissioners determine * * * and for making the general indexes provided for herein, such sum as is fixed by the commissioners.” The duties prescribed in Sections 2757, 2758, 2759, 2764, 2765, 2766 and 2767, so far as they relate to keeping up indexes, he shall do in the usual and regular work of the office, but the making of other indexes, they say, is extra work, which he- is not required to do for nothing, and for which the commissioners are authorized to alloiv him extra compensation; and that this is by contract rather than by law.

But they cut the ground from under their argument when they concede, on the next page of their brief: “It is true that for the mortgage indexes authorized to be made by the county commissioners, and the compensation for which is fixed solely by the county commissioners ?nd recorder can be said to be an allowance received by law.” ■ Then it does fall under the very language of the statute, “other perquisites received by law” and “compensation allowed by law”—which he is required to pay into the county treasury.

The defendants have based their argument upon the law as it stands in the General Code, whereas the case is governed by the law as it stood in the Revised Statutes; and they have fallen into error. For instance, they declare that it is not the official duty of the recorder to make the general index mentioned in Sections 2766 and 2780; therefore he may decline to do the work, and make Section 2766 a dead letter. The statute in vogue when the work was done, however, was couched in language quite different than that in Section 2766, General Code. Section 1154, Revised Statutes, reads: If the commissioners so direct, “the recorder shall, in addition to the alphabetical indexes, make, in books prepared for that purpose, general indexes to the records of all the real estate.” Certainly this enjoins upon him a duty. Having performed it, he can not now say it was nonofficial service not covered by his salary; nor can his sureties plead that it was not a mandatory duty guaranteed by his bond.

It is true that in State, ex rel., v. Wickham, 77 Ohio St., 1, Judge Davis states that “These ‘general indexes’ are to be made only when in the opinion of the county commissioners they are needed * * *; 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.” This was true in 1907 when it was pronounced; and it is true that this recorder, Kennedy, has received the allowed compensation. But the salary law has been enacted since Wickham’s case arose in 1905, and the question before us is, May Kennedy keep the allowance or must he pay it into the county treasury, for he was under the salary law when he received it?

In view of the decision in Thorniley et al. v. State, ex rel., 81 Ohio St., 108, he can not now retain for himself the perquisites and allowances which he could claim prior to the enactment of the salary law. As is said in that case, the former law, being incompatible with the later legislation, must yield to it because of the impracticability of harmonizing the earlier and later legislation so that they may be enforced together.

But the defendants quote from Sections 2977 and 3000, and argue that these sections prescribe determinate charges required by law to be collected as fees from patrons of the office in the regular and ordinary course of business, which properly go to the accumulated “fee fund” turned into the treasury, whereas the making of general indexes is extra work, and the compensation thereof is not determined by law, but is a variable perquisite allowed by the commissioners which the statute authorizes him to draw out of the treasury for his personal benefit. And they contend that it is absurd to say that the one statute allows him to draw the money out and the other requires him immediately to pay it back into the treasury. The simple answer to this contention is that the later statute commands that all the fees, allowances and other perquisites of the office granted by the former statute as the recompense of service in that office shall be collected by the officer as formerly, without remission or diminution, and by him paid into the treasury, and in lieu thereof he shall receive an annual salary. This accumulation of fees, allowances, perquisites, etc., in the treasury, becomes a fund for the payment for such assistants in his office as may be needful to the proper discharge of its duties.

This rational scheme was adopted as a convenient method of transition from the fee system to the salary system, without disturbing or diminishing the revenues of the office, which now go to the public treasury. The criticism which the defendants make upon the new system is essentially an animadversion upon the legislative policy of these statutes and nothing more. We have naught to do with that policy but to declare and enforce it. We can not modify and cripple it, under the guise of interpretation, to appease the defendants’ notions of its unreason or unfairness, however wise or otherwise the defendants may be in such matters. Statutes may be cut and shuffled and rearranged so as to appear incongruous. But this is not the proper method of legal construction. We must read them as they are phrased and arranged by the legislature. Some of the statutes brought under review in this case are found under the chapter entitled “County Recorder,” defining the term, revenue and duties of the office; others have been placed in the chapter entitled “Salaries of County Officers.” The same arrangement is pursued in the General Code. The statute defining the salary system is later than the statute prescribing the schedule of fees. If there is any intrinsic conflict the later enactment would prevail, and the provisions regarding fees, compensation and allowance would give way to expressions of legislative intent in the statute prescribing salaries. But a comprehensive view of the two chapters reveals a harmonious and consistent legislative plan which calls for no textual criticism or legal construction. The language needs no interpretation, because it is simple and positive and its meaning is plain—namely, that county officers shall derive no other emolument from their offices than the definite salary prescribed by law.

The reductio ad absurdum to the argument- of the defendants is that if their reasoning should prevail the very purpose of the salary law would be defeated. According to the plain, compact words of the statute, the Morgan county recorder’s compensation for extra services is covered by his salary. We do not imply that his claim is not honest; we find merely that the law does not recognize it.

The very statute which he cites as the foundation of his right to retain the money which the commissioners allowed him contains the express refutation of it. Section 2780, General Code. It is scarcely a culpable oversight that he and his bondsmen have entirely omitted this significant clause from their brief: “All compensation provided for in this section shall be paid out of the county treasury upon the allowance of the county commissioners and the warrant of the county auditor, and shall be paid into the county treasury to the credit of the recorder’s fee fund.” They proceed in their brief as if this were not in the statute, but were only the prosecuting attorney’s absurd deduction from other language of the statutes; and they charge him with “traveling in a circle.” They mistake; the circle is not in the prosecutor’s logic, it is in the law; whether wisely or unwisely .there, they can not evade it.

Finally, the defendants declaim with vigor that the interpretation of the salary law which the prosecuting attorney contends for, repeals by implication the former statute providing a recompense to the county recorder for extra work which the county commissioners hired him to do. This is true in part at least. Nevertheless we adhere to the principle involved in the first branch of the syllabus of a former parallel case, Thorniley et al. v. State, ex rel., supra, namely: “Although repeals by implication are not favored, earlier legislation must give way when it is necessary to carry out the later expression of the legislative will; and that part of Section 4903, Revised Statutes, which provides for compensation to county commissioners for services rendered as directors of'highways must be regarded as abrogated by the later act * * * giving to the county commissioners a salary and limiting their compensation to the salary designated.”

On the grounds of reason and authority, the decisions of the courts below must be reversed and the cause remanded with instructions to the court of common pleas to overrule the demurrers.

Judgment reversed.

Nichols, C. J., Shauck, Johnson and Wanamaker, JJ., concur.

■ Donahue, J.,

dissenting. The mere statement of the question presented in this .record would seem to indicate the only possible and just solution of it. I,am, entirely in accord with my associates in their hostility to the vicious fee system for compensation of public officers, but I do not agree with the majority of the court that in order to sustain the salary law it is necessary to deprive any county official of that which he is entitled to receive by every fair rule of right and reason, The act of the general assembly of Ohio fixing á salary for county officers was necessarily very comprehensive in its terms. It was, undoubtedly, the legislative intent to abolish the fee system entirely, and at this time it appears that that has been accomplished, but in the very nature of things it was impossible to foresee all the exigencies that might arise in making such change, so that justice would require the payment of fees for extraordinary services; therefore, this comprehensive salary law could not have been intended to cover any services except the regular, uniform service of each county officer, common to that office in each county of the state alike. It certainly was not intended that in some counties the board of commissioners, by its order, could require the recorder to perform important, expensive and laborious public service without compensation therefor, or that that official must, upon the order of the county commissioners, perform all this extraordinary service, wholly beyond the duties common to this office in all the other counties of the state, and, notwithstanding such extraordinary service, receive the same salary only that a like official in another county of like population receives for the regular and ordinary duties of his office where no such order had been made by the county commissioners. If such were the legislative intent, then the salary law would not only be unfair and unjust, but it would not be uniform throughout the state.

In this particular case this county recorder was elected at the November election, 1905, and entered upon the discharge of his duties in the following year. The salary law did not go into effect until January 1, 1907. The petition does not aver when the county commissioners ordered these indexes to be made, nor does it aver when the services were performed. It does aver the date that the money was drawn from the treasury, but it furiher avers that this money was drawn upon bills for this service “theretofore allowed by the county commissioners.” When this recorder went into office no question could arise as to his right to receive compensation for this service under the statutes then in force in this state. The county commissioners at that time unquestionably had full power to order the indexes made and to allow compensation therefor. In brief of counsel for defendant in error it is said that this order was made in July; 1906. Of course we cannot consider that statement in disposing of this demurrer, but the rule obtains that a pleading shall be construed most strongly against the pleader, and "if the pleader has failed to negative a possible condition of affairs under which these fees could lawfully be paid out of the county treasury without any legal obligation to return the same, then the petition is vulnerable to a demurrer. This, however, is only a technical disposition of this case. The real question is whether, under the provisions of Sections 1154, 1155 and 1158, Revised Statutes, construed in connection with the salary law, this recorder was required to pay back into the county treasury to the credit of the fee fund the fees allowed him by the county commissioners for making these indexes upon the order of that board to make the same. That this construction is not possible under these statutes as they then existed is evident from the reading of the statutes themselves. Subsequent legislation upon the same subject-matter leaves no room for controversy.

It is not important whether these indexes were authorized to be made under the provisions of Section 1154 or Section 1155, Revised Statutes. It was said by this court in the case of The State, ex rel., v. Wickham, 77 Ohio St., 1, that, under the authority of these statutes, “the. power to direct and the obligation to pay are reciprocal.” The several recorders in the s.everal counties of the state are required by statute to perform certain duties common to that office in each county, and in order that this salary law should have uniform operation throughout the state, and in order that its operation should be just and fair to every county-recorder, it must necessarily have been the intent of the general assembly to fix the salary of county recorders for the performance of the regular duties imposed by statute uniformly upon each and all of the recorders within the state. It would seem to be a reflection upon the honesty and intelligence of the general assembly to hold that it intended to include in this uniform salary of county recorders extraordinary duties equal to or greater in extent than all the other duties of a county recorder combined, and which might be imposed by county commissioners in some counties and not imposed in others. The duty of making these general indexes is not necessarily the duty of the recorder. True, Section 1154, Revised Statutes, imposed this duty upon him when the county commissioners made the order, but at that time Section 11535 provided that in all counties containing a city of the second grade of the first class the county commissioners should advertise and sell the work of preparing such indexes to the lowest bidder, and require him to give bond for the performance of the work. It is hardly necessary to say that if the duty of making these indexes devolved upon the county recorders of the several counties of the state, the legislature could not relieve the recorders in some counties from performing this duty and require them to perform it in others. Clearly such a law would not be of uniform operation throughout the state. In this connection I would call attention to the present law upon the same subject, which provides that in all the counties of the state the work of making these indexes shall now be advertised and let to the lowest'bidder, so that the legislature evidently did not consider this as one of the uniform duties of county recorders throughout the state or the duty of any county recorder, except in so far as it might be imposed by the order of the county commissioners in some counties, and, therefore, could not have intended to include it with the uniform duties to be compensated for by the general salary act. The general salary act did not in express terms repeal these sections, although these sections provided that the payment for the services required under these laws should be in addition to all other fees. It is said, however, that the language of the salary act is so broad and comprehensive in its terms that it repeals Sections 1154, 1155 and 1158, Revised Statutes, by implication. It is conceded that the policy of our law is against repeals by implication, and that it is only where there is positive, direct and irreconciláble conflict between the later and prior act that the prior act is repealed by implication. There is no such conflict between these acts. One necessarily and reasonably applies to the uniform duties of the county recorders of all the counties of the state. The other provides for compensation in addition thereto for extraordinary services that the county recorders of some counties may have to perform at the will and pleasure of the county commissioners. Certainly such legislation as this does not present an irreconcilable conflict requiring a court to hold that the prior act is repealed by implication. That the legislature did' not recognize any such conflict is evidenced by later acts. In 1910, when the Code was adopted, these statutes were rewritten practically in terms and reenacted into the statutory law of this state together with the salary act. This is in effect a declaration by the legislature that, notwithstanding the comprehensive terms of the.salary act, the compensation allowed to county recorders for making these indexes shall be in addition to other fees. It is insisted, however, that the only way to reconcile these statutes is to require the recorder, after drawing this money out of the treasury, to .pay it back into the fee fund of the county, but that that was not the intention of the legislature is also clearly evidenced by the later act in which it is specifically provided by amendment of Section 2780, General Code (Section 1158, Revised Statutes, 102 O. L., 227-290), that fees received for the services performed under that section must be paid into the county treasury to the credit of the recorder’s fee fund. If the proper construction of Section 2995, General Code, providing for uniform salary, theretofore required fees for services performed under the provisions of Sections 1154 and 1158, Revised Statutes, to be paid back into the county treasury to the credit of the fee fund, the legislature of the state was wasting its time when it amended this section for the purpose of requiring that thereafter this should be done and omitting from the amended statute all reference to fees for making general or other indexes upon order, of the county commissioners. It is evident that the legislature of the state did not intend or expect any-such construction of the salary act, otherwise it would not have troubled itself to make the amendment.

There is, however, a further amendment in the same act that is conclusive of the questions here involved. Section 1154, Revised Statutes (Section 2766, General Code), was also amended, providing that when indexes should be ordered to be made by the county commissioners, the work of making the same should be advertised and let to the lowest bidder, and that the compensation therefor should be paid out of the public treasury. If the duty of making these indexes is an ordinary and uniform duty that attaches to the county recorder’s office and covered by the uniform salary provided by the legislature for that officer, the general assembly was certainly magnanimous in relieving him from the performance of this enormous work and profligate of public funds in providing that the compensation for such work should be paid out of the county treasury with no hope or expectation of return thereof to the credit of the fee fund or any other fund. The general assembly of the state of Ohio is not in the habit of making large financial donations of public funds to county recorders or any other class of county officers. It could have had no other reason for passing this amendment except that this work was not included nor intended to be included within the work to be compensated by the recorder’s salary, but, on the contrary, that it is an extraordinary service for which the recorder was entitled to receive the additional fees provided for in the statute authorizing the commissioners to cause this extraordinary work to be done, and that the legislature believed it was in the interest of economy to advertise and let to the lowest competitive bidder the making of these indexes instead of paying to the recorder the compensation stipulated in the original act Why, if the contention of the plaintiff in error in this case is correct, and the making of these indexes is a uniform duty that attaches to the office of county recorder, the legislature might just as well have provided that recording all deeds, mortgages and other instruments should be let to the lowest competitive bidder and paid for out of public funds, and still permit the county recorder to draw his full salary. This is so self-evident as to require no argument. If the making of these extensive indexes is a part of the uniform duties of the county recorders throughout the state, except in counties containing a city of the second grade of the first class, and the compensation for the performance of such duties was included in the salary provided for county officers, then the general assembly of the state, in defiance of the rights of the public, has relieved these officers from the performance of these duties and provided that the compensation for others who do the work shall be paid out of the public funds and has made no corresponding diminution in the salaries of the officers whose duty it is to perform this service.

Of course, the legislature intentionally did nothing of the kind. It knew the duties for which it had provided this uniform salary, otherwise it could not have arrived at any just and fair salary to be paid for the services. These indexes must be made only in counties where the county commissioners make an order requiring them. The legislature must have known that in some counties the commissioners would make such order, that in other counties they would make an order for part of such indexes, as was done here, and that in other counties no order whatever would be made. In view, therefore, of the uncertainty of the amount of this extraordinary service that some of the several county recorders would be required to perform, no just, uniform salary could be fixed therefor. The only way a uniform salary could be fixed by the legislature would be to fix a salary that would cover the uniform duties of the county recorders in all the counties of the state and not attempt to include in such salary compensation for service that might or might not be required to be performed by the several boards of county commissioners of the several counties of the state. Therefore, when the general assembly amended the statute it amended it in the furtherance of economy and not in the furtherance of extravagance, waste or charity to county recorders at public expense. It is also self-evident that if those duties attached to the county recorder in such sense that they were necessarily covered by the salary provided for county recorders the legislature would have no authority to interfere with the elected officer of the people in the discharge of his duties or to provide that any of his duties should be performed by a stranger to his office. In brief, if this later amendment is constitutional, and no one seems to question its constitutionality, then the duty of making these general indexes did not and does not attach to the office of county recorder, and the compensation for the performance of these duties was not covered or intended to be covered by the salary act.

There is a further consideration, however, that is decisive of this question. It is true that in this particular instance only a part of the indexes was directed to be made, yet if the county commissioners could order a part of these indexes to be made without compensating the county recorder for making them, they could by authority of the ; ame statute have required all of the general indexes to be made therein provided'for, starting.with the first records of the county and bringing them down to that tipie. ■ In other words, this recorder would be required to perform not only the’ duties incident to his office'during the time that he was in'office, but he must go back over the work of all preceding recorders and prepare and bring down to date indexes of all their work that they should have made and would have been required to niake, if the necessity and importance of such indexes 'had been recognized in the earlier history of the state. The colossal 'nature of these indexes completely refutes the proposition that it was the intention to include compensation for these services in the general salary act. The provision that, in counties containing a city of the second grade of the first class, this work should be upon the competitive bidding plan, applied only to one county—Cuyahoga. All other, counties were included within the provisions of Sections 1154 and T155, Revised Statutes. Suppose that the county commissioners of some of the larger counties of this state had made an order requiring the county recorder to make these general indexes from the earliest history of the county down to date, is it possible that the county recorder would be compelled to perform this immense service that, with the exercise of all due diligence, would take years to complete, and receive no compensation therefor beyond the salary paid to him for the ordinary, uniform duties of that office, equal in amount only to the salary paid the recorder in a neighboring county of like population where no such order was made? It is true that by the last amendment of Section 2780, General Code, (102 O. L., 277-290), the legislature has provided that the fees for transcribing records of other counties, the transcribing defaced or injured records, shall be paid back into the treasury to the credit of the recorder’s fee fund, and it is also true that the commissioners have authority to order this work to be done, and may order it in some counties and may not order it in others, yet the largest amount that could possibly be required in any county is so trifling in comparison with the making of the general indexes of all the records of a county that it presents no parallel case and is no argument in favor of the contention here made upon behalf of the relator. The work of making a complete general index of all the records of any of the counties of this state is such that it would require at least the entire time of a county recorder during all of one term of office. In fact, it is a matter of serious doubt whether it could be completed within one term. At all events, to do the work of such gigantic nature, would at least double the duties of the county recorder in each county where such an order may be made by the county commissioners. To require a county recorder to make such indexes for a salary fixed for the uniform and ordinary duties of each of the county recorders in all of the several counties of the state would be an unjust and unfair imposition upon that officer.

I yield to no man in the sincerity of my purpose to protect the public treasury from the assaults of individual greed, but on the other hand I insist that the state should set an example of honesty and fair dealing to which its officers and citizens must conform. There was, indeed, sad need of reformation of the abuses that had grown up under the fee system. In some of the counties of this state there were officers drawing fees for services that required no particular preparation, knowledge or professional skill to perform, aggregating an amount equal to the combined salaries of the governors of ten of the states of this Union, but in bringing about this needed reformation it is not necessary that any county officer should be burdened with the performance of such enormous and extraordinary duties as those provided for in Sections 1154 and 1155, Revised Statutes, without compensation therefor. The amount of the salary of county recorder fixed by statute is fair, reasonable and just for the ordinary and uniform duties of that office in each of the several counties of the state, and evidences the intention of the state to pay a fair price for this service, but if these duties be doubled or trebled in one or two or three of the counties at the will of the county commissioners, and the recorders in this one or two or three counties be compelled to perform these additional duties, then the uniformity of this law is destroyed, and the office of county recorder becomes a burden instead of a profit. The people of this state do not desire or expect this. They are willing to pay a' fair and reasonable price for all public service per-1 formed. All that they ask is that when that' price is paid the hand of greed be stayed to prevent the* looting of public funds.

For these reasons, I cannot agree with-the judg-’ ment of the majority of this court, and I sincerely regret that my associates • have found it necessary to enter such a judgment.

Newman, J., concurs in the dissenting opinion.  