
    The State, ex rel. Hunt, Prosecuting Attorney, v. Fronizer et al.
    
      Contract executed with county for building bridges — Void under Section 2834b, Revised Statutes — Action under Section 1277, Revised Statutes, to recover money paid by county under contract — Offer to put contractor in statu quo, necessary, when.
    
    Section 1277, Revised Statutes, which authorizes a prosecuting attorney to bring action to recover back money of the county which has been misapplied, or illegally drawn from the county treasury, does not authorize the recovery back of money paid on a county commissioners’ bridge contract fully executed but rendered void by force of section 28346, because of the lack, through inadvertence, of a certificate by the county auditor that the money is in the treasury to the credit of the fund, or has been levied and is in process of collection, there being no claim of unfairness or fraud in the making, or fraud or extortion in the execution of such contract for such work, nor any claim of effort to put the contractor in statu quo by a return of the bridge or otherwise, the same having been accepted by the board of commissioners and incorporated as part of the public highway.
    (No. 10343
    Decided October 22, 1907.)
    Error to the Circuit Court of Sandusky county.
    The State, on the relation of the prosecuting attorney of Sandusky county, brought its action in the common pleas of that county against S. M. Fronizer, N. V. Elliott and The Bellefontaine Bridge and Iron Company, by virtue of section 1277, Revised Statutes, for the sum of $1931, as money illegally drawn from the treasury of said county by the defendants.
    The substance of the petition as amended avers the making on and before July 18, 1903, of certain contracts by the defendant Company through its agent Fronizer, with a majority of the board of county commissioners, for furnishing the materials. and performing the work therein specified for the construction of certain bridges in Sandusky county, and the repair of other bridges, at prices therein named, the same to be paid on the first day of January, 1904, on the completion of the same. The contracts so made were illegal, contrary to and in violation of law, and unlawful, as the defendants Fronizer and the Company, as also the said commissioners then well knew. Said board did not, nor did any member thereof, before nor at the time of entering into said contracts, nor at any other time, procure the certificate of the county auditor as required by section 2834b, Revised Statutes; that the money required for the payment of the obligation created by the contracts, or any part thereof, was in the treasury of said county to the credit of the bridge fund of said county, or had been levied and placed on the duplicate of said county and in process of collection and not appropriated for any other purpose, as in said statute provided; nor any such certificate made and filed by the county auditor at the time said contracts were entered into, and no such fund not otherwise appropriated was in the treasury of said county at the time of the payment of said obligations. The prices and amounts agreed upon in said contracts were exorbitant, largely, grossly and fraudulently in excess of the true and reasonable value thereof; to-wit, double the real value thereof and more as the defendants Fronizer and the Company then and there well knew, to the great damage of the county and the taxpayers thereof.
    The said contracts were entered into secretly between two of the board of county commissioners and Fronizer, who then and there purposely and fraudulently kept and concealed all their acts and movements concerning said contracts from the other member of the board, and said contracts, nor any of them, were never entered in open public board meeting or session of the board; nor was any minute or record made by the commissioners or the auditor of any proceedings in making said contracts in the journal or proper record of said board.
    On the 20th day of December, 1903, and before any sum was due and payable according to the terms of said' illegal contracts, said defendants (Elliott claiming to be agent for the Company), well knowing the contracts to be so fraudulent, illegal and wrongful, wrongfully procured the allowance by two of the commissioners, who then well knew that said contracts were so fraudulent, illegal and wrongful, procured from the treasury of said county payment of the amount of said illegal contracts, to-wit: the sum of $1931.00 which relator demands to be paid back into the treasury of the county.
    The three defendants filed separate answers but in substance the same. They admitted that the Company, through Fronizer, entered into the contracts set forth; that they were informed and believed that in making the contracts the commissioners inadvertently failed and neglected to procure the certificates of the auditor of the county, as set out in the petition, and that said auditor inadvertently failed and neglected to make and file such certificates before said contracts were entered into; they admit the allegations of the petition as to the omission of such certificates. They admit the voluntary payment to the Company’s agents and aver that each and every of said contracts has been and was, before bringing of this action, fully performed and executed, and the defendants deny each and every allegation of the petition not hereinbefore specifically admitted to be true; and especially deny all allegations of fraud, conspiracy, excessive prices and fraudulent conduct on part of any of defendants, and of damages. As an affirmative defense it was pleaded that before any of the Company’s claims for said bridges, repairs, etc., had been adjudicated or payments made thereon, each and all the bridges, materials and repairs mentioned in several causes of action in the petition, had been in good faith duly furnished to said Sandusky county and erected and placed in all respects as required by the several contracts therefor, which have been fully executed and performed; that said bridges, materials and repairs on being so erected, furnished and placed, were received, accepted and appropriated to its own use by said county and by the board of county commissioners thereof who had then full jurisdiction and power and authority over the matter of the purchase and erection of said bridges, materials and repairs for said county and who then had full knowledge of all the facts concerning the making of the contracts therefor. Ever since said bridges, etc., were so received, accepted and appropriated, they have been retained in the possession of said board and its successors, and of said county, and have been constantly used and enjoyed by them and by the inhabitants and taxpayers of said county as necessary and essential parts of the public structures and highways -of said county, and no part of said bridges, materials or repairs, or of the value thereof, has ever been offered or tendered back to the defendants or any of them by said county or any of its officers or authorities.
    To this defense the relator interposed a general demurrer. On hearing, this demurrer was overruled, and the relator not desiring to plead further, judgment was entered dismissing the petition and for costs. This judgment being affirmed by the circuit court relator brings this proceeding in error.
    
      Mr. M. W. Hunt, prosecuting attorney, and Mr. Basil Meek, for plaintiff in error,
    cited and commented upon the following authorities:
    
      Bridge Co. v. Campbell et al., 60 Ohio St., 406; Printing Co. v. State, 68 Ohio St., 362; Jones, Auditor, v. Commissioners, 57 Ohio St., 189; Black's Law Dictionary, “Rescission”; Insurance Co. v. Hull, 51 Ohio St., 270; Davis v. Justice, 31 Ohio St., 367.
    
      Mr. S. PI. West; Messrs. Hunt & Gam; Mr. Lester Wilson and Messrs. Kline, Tolies & Goff, for defendants in error,
    cited and commented upon the following authorities:
    
      State, ex rel., v. Zumstein et al., 4 C. C., 268; 2 Cir. Dec., 539; State, ex rel., v. Fronizer et al., 28 C. C., 709; Lessee of Bond v. Swearingen, 1 
      Ohio, 403; Felix v. Griffiths, 56 Ohio St., 39; Insurance Co. v. Bernard et al., 33 Ohio St., 459; Brown v. Witter, 10 Ohio, 143; Dudley et al. v. Little., 2 Ohio, 504; Lear et al. v. McMillen, 17 Ohio St., 464; Follett v. Saviers, 35 Bull., 222; Reed v. McGrew, 5 Ohio, 375; Taft v. Wildman, 15 Ohio, 123; Williamson v. Moore, 2 Disney, 30; Railroad Co. v. Steinfeld, 42 Ohio St., 449; Saxton v. Seiberling, 48 Ohio St., 554; Insurance Co. v. Burke, 69 Ohio St., 294; Trustees v. Cherry, 8 Ohio St., 565; Lee v. Monroe County, 14 O. F. D., 43; Marsh v. Fulton County, 10 Wall., 676; Louisiana v. Wood, 102 U. S., 294; Chapman v. County of Douglas, 107 U. S., 348; Bridge Co. v. Town of Utica, 17 Fed Rep., 316; Riddle v. Bryan et al., 5 Ohio, 49; State v. Blake et al., 2 Ohio St., 147; Pancoast v. Ruffin et al., 1 Ohio, 381; Medical College v. Zeigler et al., 17 Ohio St., 52; State, ex rel., v. Dombaugh, Clerk, 20 Ohio St., 167; Dwarris, 144, 230; Sutherland Statutory Construction, sections 217, 231, 263, 266, 282, 325; McIntyre et al. v. Ingraham et al., 35 Miss., 25; Fosdick v. Village of Perrysburg, 14 Ohio St., 472; Doll v. Barr, 58 Ohio St., 113; Gas Co. v. City of Tiffin et al., 59 Ohio St., 420; City of Cincinnati v. Holmes, Admr., 56 Ohio St., 104; Crane v. Reader et al., 22 Mich., 322; Pretty v. Solly, 26 Beavan, 610; Gardner v. Collins et al., 2 Peters, 93; Brower et al. v. Hunt et al., 18 Ohio St., 341; McDowell v. Sapp, 39 Ohio St., 558; Goshorn et al. v. Purcell, 11 Ohio St., 641; Stetson v. Bank, 2 Ohio St., 167; Printing Co. v. State, 68 Ohio St., 362; Krause et al. v. Morgan, 53 Ohio St. 26; Reynolds v. Hindman, 32 Ia., 146; Taylor, 
      
      Admx., v. Manufacturing Co., 143 Mass., 470; Grand, Admr., v. Railroad Co., 83 Mich., 564; Holum, Admr., v. Railway Co., 80 Wis., 299; Abbott v. Wood, 22 Me., 541; Renfoe et al. v. Colquitt, Governor, 74 Ga., 618; Moore v. Given, 39 Ohio St., 661; Brigel v. Starbuck, 34 Ohio St., 285; Black on Interpretation, section 46; Maxwell on Interpretation, 249; Bank v. Moore, 78 Pa. St., 407; Moore v. Hershey, 78 Pa. St., 196; Emmert v. City of Elyria, 74 Ohio St., 185; Insurance Co. v. Hull, 51 Ohio St., 270; Lee v. Commissioners, 114 Fed. Rep., 744; 52 C. C. A., 376.
   Spear, J,

A somewhat extended epitome of the pleadings has been given in order that the' general character of the controversy may be the more easily comprehended. But the real question presented to this court is in a very narrow compass. Whatever the actual facts may be, the demurrers of the relator to the answers admit, for the purposes of the inquiry, the truth of the allegations therein well pleaded, and if those allegations constitute a defense to the relator's claim to recover back the money paid on the contracts for the bridges, etc., then there is no error in the judgment below. It is to be borne in mind that this is not an action in injunction to prevent the paying out of money from the treasury, nor to recover damages by reason of faulty work or excessive charges, but is simply an action to recover back the money paid under the contracts for the bridges, repairs, etc.; and further, that the contracts, though void are not, under the facts admitted by the pleadings, in this case, tainted.

The inquiry involves consideration of section 2834b, Revised Statutes, the pertinent provisions of which are:

“The commissioners of any county * * * shall enter into no contract, agreement or obligation involving the expenditure of money, nor shall any resolution or order for the appropriation or expenditure of money, be passed by any board of county commissioners * * * unless the auditor * * * shall first certify that the money required for the payment of such obligation or appropriation is in the treasury to the credit of the fund from which it is to be drawn, or has been levied and placed on the duplicate and in process of collection and not appropriated for any other purpose; which certificate shall be filed and immediately recorded, * * * and all contracts, agreements or obligations, and all orders or resolutions, entered into or passed contrary to the provisions of this section shall be void.”

Also of section 1277, affording a right of action to the prosecuting attorney, which is in these terms, to-wit:

“Sec. 1277. (Duty as to restraining order.) The prosecuting attorneys of the several counties of the state, upon being satisfied that the funds of the county, or any public moneys in the hands of the county treasurer or belonging to the county, are about to be, or have been misapplied, or that any such public moneys have been illegally drawn out of, or withheld from the county treasury, or that a contract in contravention of the laws of this state has been, or is about to be entered into, or has been or is being executed, or that a contract was procured by fraud or corruption, or that any property, real or personal, belonging to the county is being illegally used or occupied, or is being used or occupied in violation of the terms of any contract, or that the terms of any contract or agreement made by or on behalf of the county are being violated, or that any money is due the county, may apply, by civil action in the name of the state, to a court of competent jurisdiction, to restrain such contemplated misapplication of funds, or the completion of any such illegal contract not fully completed, or to recover back, for the use of the county, all such public moneys so misapplied or so illegally drawn out or withheld from the county treasury, or to recover, for the benefit of the county any damages resulting from the execution of any such illegal contract, or to recover, for the benefit of the county, any such real or personal property so used or occupied or to recover, for the benefit of the county, any damages resulting from the non-performance of the terms of any contract, or to otherwise enforce the same, or to recover any such money due the county.”

And, putting the question presented in terse form, it is whether or not section 1277, as above given, authorizes the recovery back of money paid on a county commissioners’ bridge contract fully executed but rendered void by force of section 2834ft, because of the lack through inadvertence, of the county auditor’s certificate as therein required, there being no claim of unfairness or fraud in the making, or fraud or extortion in the execution of such contract for such work, nor any claim of effort to put the contractor in statu quo by a return of the bridge or otherwise, the same having been accepted by the board of commissioners and incorporated as part of the public highway. ■

This court is of opinion that such recovery. is not authorized. , The principle applicable to the situation is the equitable one that where one has acquired possession of the property of another through an unauthorized and void contract, and has paid for the' same, there can be no recovery back of the money paid without putting, or showing readiness to put, the other party in statu quo, and that rule controls this case unless such recovery is plainly authorized by the statute. The rule rests upon that principle of common honesty that imposes an obligation to do justice upon all persons, natural as well as artificial, and is recognized in many cases. Chapman v. County of Douglas, 107 U. S., 348; Lee v. Board of Commissioners, 52 C. C. A., 376; Bridge Co. v. Utica, 17 Fed Rep., 316.

It is an equally well established rule that the general assembly will not be presumed to have intended to abrogate a settled rule of the common law unless the language used in a statute clearly imports such intention. Holum, Admr., v. The C. M. & St. P. Ry. Co., 80 Wis., 299; Reynolds v. Hindman, 32 Iowa, 146; Renfroe v. Colquitt, 74 Ga., 618; Felix v. Griffiths, 56 Ohio St., 39.

We look in vain for any such intention clearly expressed in section 1277. Whatever right of action is given b}?- that section is devolved upon the prosecuting attorney, and the suit below was grounded upon that section and that alone. By it that officer is authorized, whenever in his judgment money of the county has been illegally drawn from the treasury, or misapplied, to apply by civil action in the name of the state to a court of competent jurisdiction to recover back the money so illegally drawn or misapplied. Here the power or right expressed ends. It does not appear that it was the intention to deprive a party who has dealt with the county honestly, and in good faith, of any legitimate defense or to impose upon the court any duty to ignore the well established rules of jurisprudence and adjudge in favor of the plaintiff upon his application whether such demand violates fundamental principles of law or not. In the absence of legislative intent clearly expressr ed, we must conclude that none was intended. As stated in Felix v. Griffiths, supra: “Where it is attempted to abrogate or modify a well established rule of common law by statute * * * the scope should not be extended beyond the plain import of the words used, where reasonable effect can be given to the amendriient without such extension.” Here reasonable effect can be given the section without extension because the right to sue for damages is clearly expressed.

The exact question arising upon this record has not before been presented to this court, although the statute itself was under review in Vindicator Printing Company v. State, 68 Ohio St., 362. That case is authority for the proposition that there may be a recovery back by the prosecuting attorney where the money has been paid for the publishing of certain notices the publication of which was not authorized by law. The publications were not only without authority of law but they were of no value to either the county or the public. Therefore no property of the company had been obtained by the county. Clearly the case is not analogous to the case at bar.

Buchanan Bridge Company v. Campbell, 60 Ohio St., 406, is cited. That case simply holds that a contract for a bridge made in violation or disregard of the statutes on the subject, is void, and no recovery can be had against the county for its value. Courts will leave parties where they have placed themselves and refuse relief. It is difficult to see that this case aids the plaintiff’s contention.

The county should not be permitted to retain both the consideration and the bridges. And, as in the case above cited the court left the bridge company where it found it, so in this case the court leaves the county of Sandusky where it finds it.

The judgment of the circuit court will be

Affirmed.

Shauck, C. J., Price, Crew, Summers and Davis, JJ., concur.  