
    COMPENSATION AND SALARIES — PHYSICIANS AND SURGEONS
    [Cuyahoga (8th) Circuit Court,
    March 28, 1908.]
    Winch, Henry and Marvin, JJ.
    Cuyahoga Co. (Com.) v. A. P. Hammond.
    Physician Has no Right to Compensation for Performing Autopsy.
    Section 1305 R. S. (Sec. 2495 G. C.), creates no liability on the part of the county in favor of a physician or surgeon who has made a post mortem examination at the instance of the coroner if the county commissioners refuse to allow him compensation.
    Error.
    
      C. W. Stage, for plaintiff in error.
    
      E. P. Eirich and William Howell, for defendant in error.
   HENRY, J.

The defendant in error presented his bill to the county commissioners of Cuyahoga eounty, duly approved by the coroner of this eounty, for medical services rendered in performing an autopsy ordered by that official. The claim was based upon See. 1305 R. S. (See. 2495 GL C.), but the commissioners rejected it; thereupon Dr. Hammond appealed to the common pleas court, under favor of Sec. 896 R. S. (Sec. 2461 G. C.), whereupon the commissioners moved for dismissal of the appeal for want of jurisdiction. This motion was refused, and exception reserved, whereupon judgment on the merits was rendered in favor of Dr. Hammond for the sum of $15.

In this proceeding in error it is urged that the court of common pleas erred in refusing to dismiss the appeal. Section 1305 (2495) reads as follows:

“When a physician or surgeon makes a post-mortem examination at the instance of the coroner or other official he shall be allowed such compensation for his services as the county commissioners of the proper county may direct.”

The language of this section seems to be perfectly analogous to the phraseology of the statutes which were construed in Geauga Co. (Comrs.) v. Ranney, 13 Ohio St. 388, and Long v. Miami Co. (Comrs.) 75 Ohio St. 539, where it was held in both instances that an attorney has no right of appeal from the decision of the county commissioners for allowing a sum alleged to be inadequate, in payment for services in defending an indigent prisoner, pursuant to assignment in that behalf by the common pleas court.

Comparison of these cases with Shepard v. Darke Co. (Comrs.), 8 Ohio St. 354, and Elizabeth Tp. (Tr.) v. White, 48 Ohio St. 577 [29 N. E. 47], discloses the true test to be: Does the statute of itself create the liability which is asserted, or does the statute merely authorize the county commissioners to create the liability 1 In the former case the right of appeal exists from the decision of the county commissioners refusing to recognize any liability; in the latter instance no such right of appeal is allowable.

Section 1305 (2495) seems clearly to provide that the legal demand or liability for compensation to a physician who performs a post mortem examination at the instance of a county officer arises only when the county commissioners have allowed such demand. If they refuse to allow anything, no liability exists. The judgment of the court of common pleas is therefore reversed for error in refusing to dismiss the appeal for want of jurisdiction. And proceeding to render here the judgment which the court below should have rendered, the appeal from the decision of the board of county commissioners is dismissed.

Winch and Marvin, JJ., concur.  