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"That due demand has been made upon said Ezra Baker for the payment of said sum and interest and which demand has been ignored.

said county surveyor, in charge of said ditch, | said sum of $497.75, together with 6 per in making a final estimate upon said improve- cent. thereon from December 2, 1908. ment and his certificate therefor, to the said Ezra Baker, deducted from the original contract price the sum of $597.75; the said amount being the value of labor saved, calculated pro rata upon said original contract price, from being performed by reason of said change in said specifications.

"That thereafter the said Ezra Baker presented a certain bill to the said county commissioners for the said amount of $597.75, which bill was false, fraudulent, and fictitious, and said Darke county had received no services, property, or other things of value therefor from the said Ezra Baker nor any one for him. That about September 21, 1907, the said then county commissioners undertook and pretended to allow said false and fictitious bill in the sum of $497.75. That at said time the legality of said bill had not been approved by the prosecuting attorney of said county, and was never thereafter so approved by the prosecuting attorney. Nor at said time had the said county surveyor, engineer in charge of said ditch improvement, approved the said bill, and that the then auditor of Darke county, Ohio, upon the direction and order of the prosecuting attorney, refused to issue a warrant in payment for the said bill or in any part thereof.

"That a long time thereafter, to wit, December 2, 1908, the said Ezra Baker procured the then auditor of said county to issue a warrant upon the county treasurer for said amount, which warrant is in the words and figures following, to wit: 'Series P. $497.75. Auditor's Office, Darke County, Ohio. Greenville, Ohio, December 2, 1908. The Treasurer of Darke County: Pay Ezra Baker, or order, four hundred ninety-seven and 75-100 dollars for final estimate on Bridge Creek ditch improvement out of the ditch funds, by order of Comrs. Frank Snyder, Auditor. No. 1,

675.'

"That thereupon the said Ezra Baker presented said warrant to the county treasurer and received thereon public moneys of Darke county, Ohio, from the said treasurer in the sum of $497.75. That at said time there was not any money due and owing the said Ezra Baker from Darke county, Ohio, in the sum of $497.75, or any other sum whatever, and that the said payment of said money to the said Ezra Baker and the receipt thereof by him were at the time illegal and unwarranted.

"That the county of Darke, as a corporate entity, was and is interested in the said Bridge Creek ditch improvement and the said Darke county was assessed and did pay in the construction of said improvement the sum of $390, and said county was and is an interested taxpayer in said improvement. "That by reason of the premises above set out, there is now due the said Darke coun

"Wherefore, said plaintiff prays judgment against the said Ezra Baker, in the sum of $497.75, together with 6 per cent. interest from December 2, 1908, for the use of said Darke county, Ohio, and costs herein and all proper relief."

To this amended petition the defendant interposed the following demurrer: "By leave of court, on the application of said defendant, the motion heretofore filed by him having been withdrawn, the said defendant comes now and demurs to the amended petition herein for the reasons: (1) That said plaintiff has not legal capacity to sue. (2) The said amended petition does not set forth facts sufficient to constitute a cause of action herein."

Upon hearing, the common pleas court sustained the demurrer to the amended petition, and, plaintiff not desiring to further amend, judgment was entered in favor of the defendant. Thereupon plaintiff prosecuted error to the circuit court, which affirmed the judgment below. Error is here prosecuted to the judgments below.

John F. Maher, Pros. Atty., and O. R. Krickenberger, both of Greenville, for plaintiff in error. Robeson & Yount and D. W. Bowman, all of Greenville, for defendant in

error.

WANAMAKER, J. (after stating the facts as above). The case at bar is for the recovery back of money claimed to have been unlawfully paid out of the county treasury by virtue of section 2921, General Code, upon the state of facts set forth in the petition, which, boiled down, are substantially as follows: Ezra Baker was surety upon the bond of one Abe Oda, who became a contractor for the construction of a ditch improvement known as the Bridge Creek ditch improvement; that Oda became unable to carry out this contract, and the defendant, Ezra Baker, took the contract and proceeded to execute it; that in the course of the work the county commissioners changed the specifications so as to materially reduce the amount of work; that the written contract provided among other things that where a change is made there should be added to or deducted from the contract price accordingly as the change required more or less labor or material; that under this provision of the contract the engineer in charge of the work made an estimate of the amount that Baker was to receive; that this estimate was $497.75 less than the contract for the original work; that the amount of this estimate was allowed and paid by the com

sented a bill to the commissioners for the additional amount of $497.75, which was allowed by the commissioners; that an order or warrant was drawn in favor of Baker by the auditor upon the treasurer in the following words and figures: "Series P. $497.75. Auditor's Office, Darke County, Ohio. Greenville, Ohio, December 2, 1908. The Treasurer of Darke County: Pay Ezra Baker, or order, four hundred ninety-seven and 75-100 dollars for final estimate on Bridge Creek ditch improvement out of the ditch funds, by order of Comrs. Frank Snyder, Auditor. No. 1,675." Thereupon the said Baker presented said warrant to the county treasurer and received thereon public moneys of Darke county, Ohio, from the said treasurer in the amount of the warrant; and that at said time there was not any money due or owing the said Baker from Darke county, and that the said payment of said money to said Baker was at the time without any warrant or authority of law.

The questions involved in this case are substantially the ones raised by the demurrer to the amended petition: (1) Has the plaintiff legal capacity to sue? (2) Does the amended petition set forth facts sufficient to constitute a cause of action?

It is conceded by counsel on both sides of this case that that this action depends very largely upon the interpretation to be given to section 2921, General Code. The statute reads as follows: "Upon being satisfied that funds of the county, or 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, or withheld from, the county treasury, or that a contract in contravention of law 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 contract, or that the terms of a contract made by or on behalf of the county are being or have been violated, or that money is due the county, the prosecuting attorneys of the several counties of the state 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 such illegal contract not fully completed, or to recover, for the use of the county all public moneys so misapplied or illegally drawn or withheld from the county treasury, or to recover, for the benefit of the county, damages resulting from the execution of such illegal contract, or to recover, for the benefit of the county, * * * damages resulting from the non-performance of the terms of such contract, or to otherwise enforce it, or to recover such money due the

[1, 2] What is the common sense construction of this statute as applied to the facts of this case?

In construing any written instrument, whether it be a will, contract, statute, or constitution, the primary and paramount rule is: What was the intent or purpose of the makers of such written instrument? And it is conceded to be the almost universal law that that intent or purpose shall be chiefly gathered from the language employed in such instrument. If it be a penal statute that is under consideration, it is to be strictly construed in favor of the persons to be punished. If it be a remedial statute, it is to be liberally construed in favor of the persons The strict construction, to be benefited. however, must not squeeze out the lifeblood of the statute, nor should the liberal construction result in the exercise of the legislative power of amendment under the mask of so-called interpretation. In short, it is not the proper province of the court to add to or subtract from the intended meaning and scope of the statute. In any case, the interpretation should be reasonable, consistent with the language used, and conducive to the purposes to be accomplished by the enactment of the statute.

What was the intention of the lawmakers What was their

who made this statute? purpose in passing it?

Upon the most superficial reading of this statute, can any fair-minded person, in the light of common sense as well as the common law, doubt that the design and purpose was to protect the public in their contracts, their property, and their moneys? If not, what was it?

An analysis of the foregoing section 2921, sification with reference to the moneys or General Code, discloses the following clasfunds specified in the statute, to wit: (1) Funds of the county; (2) public moneys in the hands of the county treasurer; or (3) (public moneys) belonging to the county.

It is claimed on the part of the defendant that by reason of the fact that the money paid Baker was for the balance of the contract price for the construction of a ditch improvement, which ditch was ultimately paid for by the adjacent and abutting owners who are benefited by the improvement, through assessments duly made upon their several lands, that the moneys in question were not public moneys, or county moneys, as specified by the statute, but that they were in truth and in fact private moneys belonging to the parties assessed for the construction of the ditch. It is therefore contended by the defendant that, if there was any remedy in anybody to recover back such money so wrongfully paid out, it would not be in the prosecuting attorney for and on behalf of the county, but in some party assessed for the ditch in behalf of himself and others who were likewise severally assessed, and that

people's agents in the transaction of public business. If agents in the transaction of private business use their power against their principals' interests, we know what speedily happens. Why should there be any less fidelity in the transaction and protection of the public business by our courts?

The purpose, phrasing, and power of the statute all happily combine to protect the people's purse and property and to protect and promote official honesty. Our construction should defend and not defeat the sound statesmanship of this statute. The Legislature, however, seemed to anticipate that some court might interpret this statute with superlative strictness upon the question of ownership, and therefore they put in another class: (2) Public moneys in the hands of the county treasurer. Does anybody doubt that this money paid to Baker was, before the payment by the county treasurer, in the hands of the county treasurer? No doubt, by a splitting of frog hairs, it could be urged with equal force that it was not in the hands of the county treasurer but that it was in the vaults of the county treasury. This is the kind of construction wherein the letter killeth but the spirit giveth life.

Authority for the judgments below is claimed by virtue of the case of Loe v. State ex rel., 82 Ohio St. 73, 91 N. E. 982. The sylla

As to classes 1 and 3 above cited, to wit, I seem to some, courts after all are but the (1) funds of the county, and (3) public moneys belonging to the county, there might be at first blush some doubt in the strict and literal meaning of the words designating the funds. Still, even applying the strictest rule of construction, it must be conceded that the funds in question upon which the warrant was drawn, or out of which the warrant was paid, were then in the custody of the county. The county, therefore, was the bailee of these funds at the time and had therefore their rightful custody, if for no other purpose, as a disbursing agent, or as a political subdivision of the state exercising certain administrative functions conferred by law. Maifestly the bailee has a right to protect his funds while they are rightfully in his custody, and, if necessary, may do so by a suit at law or in equity, the more so where the power is directly conferred by statute. Suppose, for instance, these funds had been stolen and the indictment charged that the money was the property of said Darke county, Ohio, and upon the trial it should turn out that this was money in the custody of the people of the county arising out of the ditch assessments, and that therefore they were not properly, really, or strictly, county funds or public moneys, but that the county simply had the right of possession as a bailee. Would there be any question but that the thief could be convicted of larceny notwith-bus reads as follows: "Moneys which are standing the fact that the indictment alleged the ownership of the property absolutely and unconditionally in the county? Certainly not. The books are full of just such cases. If ownership of the property in a larceny prosecution may be pleaded and proved in the bailee as the real owner, much more so in the ordinary civil proceeding to recover back money may the ownership of property be pleaded and proven in the bailee as owner. Conceding for the purpose of this case that the fund out of which the warrant was paid was a fund raised by ditch assessment (though neither the petition nor the warrant discloses whether it was ditch funds raised by general taxation or taxation of the persons benefited in the neighborhood of the ditch), what was each contributor's interest in said fund after he had paid his assessment into the county treasury? Had such contributor not fully and eternally lost all It will be observed that as far as the escontrol, dominion, and interest in said fund? sential facts are concerned the cases are Had he not absolutely parted with his proper- on all fours. The syllabus of this case, howty in the same? Indeed, has it not been re- ever, overlooked one very important distincpeatedly held by courts without number that tion in the language of the statute, and that if, after payment of the assessment, the law is the second class above referred to: "Pubunder which the ditch was constructed or the lic moneys in the hands of the county treasassessment made was held unconstitutional, urer." The Legislature evidently intended the assessment cannot be recovered back un- that not only public moneys belonging to the less payment was made under a proper pro- county might be recovered in a suit at law, test? 30 Cyc. 1315. Title to those moneys but public moneys in the hands of the counmust be somewhere and in somebody. It is ty treasurer were also to be recoverable in not in the contributors to the fund. Where a suit at law. The latter class of public else can it be than in the county or its agent moneys seems to have been overlooked in the

paid into the county treasury by virtue of
proceedings for the location and construc-
tion of a county ditch in conformity with sec-
tion 4447 and cognate sections of Revised
Statutes, are not 'funds of the county,' nor
'public moneys in the hands of the county
treasurer belonging to the county,' within
the meaning of section 1277, Revised Stat-
utes; and where one who has contracted for
the construction of all or a part of a county
ditch has been fully paid by the county treas-
urer on warrants issued to such contractor
by the county auditor, when the work of
construction so contracted for was but par-
tially performed, the prosecuting attorney
is not authorized by said section 1277 to
bring and maintain an action to recover back
from the contractor the amount received by
him in excess of the work actually per-
formed."

How public must money be before it is | people of a place; but so many of them as public enough to be embraced in this stat- contradistinguishes them from a few." State ute?

In the first place, we take it that a county ditch is certainly a public matter. Section 6443 et seq., General Code, and section 4447 et seq., Revised Statute, all recognize it as a public matter. It is petitioned for by the public. The petition itself recites that the improvement is for the "public health, convenience, and welfare," and the commissioners must so find upon their journal before the ditch may be constructed. The petition is addressed to the board of county commissioners. The legislation from one one step to another is conducted by the board of county commissioners and the viewers appointed by them, and the county surveyor. The assessments are made by public officers and collected by public officers. The contract is let and supervised by the public officers. And yet it is seriously contended that it is a private transaction, or, at all events, the moneys in the hands of the county treasurer arising from this improvement and assessment upon the abutting landowners, are not within the scope, purpose, and limitations of

the statute.

The record does not disclose how many individual people were assessed for this improvement. But evidently there was a considerable number in the neighborhood of the ditch-enough at all events to invoke the jurisdiction of the public authorities to legislate upon and construct a public improvement. And it would be folly to say that in order to protect the fund arising from

v. Luce, 9 Houst. (Del.) 396, 399, 32 Atl. 1076, 1077; United States v. Luce (C. C.) 141 Fed. 385, 392; 32 Cyc. 747 et seq.; Thomas v. County Com'rs, 5 Ohio N. P. 449, 5 Ohio Dec. 503,

The interpretation necessary to sustain the judgments below is of the sort that bleeds statutes to death and pulls the teeth out of remedial laws not only designed, but absolutely essential, to protect the public interests and safeguard the public funds. We desire to squarely and distinctly disapprove and reverse the case of Loe v. State, supra, so far as it relates to the case at bar.

Aside, however, from the construction of the statute as aforesaid, we believe that the petition itself stated a good cause of action when it averred the language of the statute as follows: "That thereupon the said Ezra Baker presented said warrant to the county treasurer and received thereon public moneys of Darke county, Ohio, from said treasurer in the sum of $497.75." Here was a square, straight declaration that it was public money of Darke county, Ohio, that had been paid out. Clearly this, in the first instance, brought the petition squarely under the language of the statute above cited even under the Loe Case.

[3] But we have not been disposed to decide this case upon this last proposition, because at once upon the close of the plaintiff's case a motion would doubtless be interposed to direct a verdict by reason of the authority have gone into the whole question, so that of the Loe Case, supra, and therefore we protect it from crooks, criminals, and plun- the power of the prosecuting attorney in derers, and that the same might be converted reference to public moneys, property, conto private use by embezzlement and the pub-tracts, and the like, may be construed in the lic authorities be powerless to prevent or spirit in which the statute was enacted, to lic authorities be powerless to prevent or wit, the full and complete protection of the

this improvement the public officers who assessed and collected it were powerless to

punish.

It

[4] From time immemorial ditches have been recognized as proper public uses. would seem by a parity of reasons and logic that the funds contributed, no matter by whom, and paid into the public treasury, would thereby become public funds within the meaning of the statute. So that we have "public" as a word of qualification and characterization not only as to the use but as to the funds necessary to pay for the use.

Lest some, however, be in want of authority of other courts upon the question and meaning of the word "public" in this connection, the following are cited: "The term 'public' does not mean all the people, nor most of the people, nor very many of the

people's property, the people's contracts, the people's moneys, whether that money be a fund created by a dozen contributors for a ditch, a hundred contributors for a road, or ten thousand contributors for a general tax fund.

Judgments of the common pleas and circuit courts reversed, and cause remanded to the court of common pleas of Darke county, with instructions to overrule said demurrer, and for further proceedings according to law. Reversed.

JOHNSON, DONAHUE, NEWMAN, and WILKIN, JJ., concur. SHAUCK, C. J., concurs in the judgment.

(88 Ohio St. 192)

SPENGLER v. SONNENBERG et al. (Supreme Court of Ohio. June 10, 1913.)

(Syllabus by the Court.)

1. PRINCIPAL AND AGENT (§ 119*) - CONTRACT BY AGENT-PROOF OF AGENT'S AU

THORITY.

In a proceeding to enforce specific performance of a written contract for the sale of real estate, signed by an agent under express authority, it must be shown that the authority was such as to permit the making of the identical contract sued on, and not one differing therefrom in a material respect.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 391-401; Dec. Dig. 8 119.*]

2. PRINCIPAL AND AGENT (§ 155*)-AUTHORITY OF AGENT-VALIDITY OF CONTRACT.

If an agent, acting under express authority to enter into a written contract for the sale of land, makes a contract for his principal which includes terms not authorized, the agreement is void, and its performance will not be enforced. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 574-582; Dec. Dig. 155.*]

3. PRINCIPAL AND AGENT (§ 123*)-AUTHORITY OF AGENT-PROOF.

Where the express authority of an agent to sign an agreement in writing for the sale of lands rests in parol, the proof must be clear and convincing, not only of such parol authority, but also that the authority was such as to permit the inclusion of all of the material terms which are embodied in the instrument.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. §. 123.*]

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the said premises for the sum of $10,800, payable $3,000 on or before March 20, 1910, $2,000 on or before June 1, 1910, deferred payment to be secured by three equal notes due in one, two, and three years from date, respectively, with 6 per cent. interest, payable annually, with privilege of payment in sums of $100 or more on any interest day, said notes to be secured by mortgage on said premises, the plaintiffs to have the tile, logs, lumber, and wire fencing then on said premises for the improvement of the same, also to have the farm's share, as given by the renter thereof, for the season 1910. The petition further alleges that the plaintiffs tendered to the defendant the sums of money stated and the notes secured by the mortgage, in accordance with the agreement, but that the defendant refused and still refuses to receive said payments and notes, and refuses to execute and deliver to plaintiffs a good and sufficient deed or any deed for said premises.

The answer of the defendant admits that he is the owner of the lands and in possession of the same and has been in possession for many years last past, and denies all the other allegations in the petition.

On the hearing in the common pleas, a finding and decree was entered in favor of the plaintiffs. The case was appealed to the circuit court, where it was ordered and decreed that the plaintiffs, within five days, deposit with the clerk of the court the $5,000 in money, and the three notes, and the mortgage securing the payment of the same, and that defendant shall, "within five days thereafter, execute and deliver to plaintiffs a warranty deed for the premises described in said petition, and that, upon failure of defendant to execute and deliver to plaintiffs such a deed, this decree shall stand for and operate as such conveyance." It was further ordered that, in the event plaintiff failed to deposit said money, notes, and mortgage within the time specified, plaintiffs' petition shall stand dismissed.

A finding of facts was made by the circuit court, on which its judgment was entered. From this it appears: That in May, 1909, William Spengler owned the lands described in the petition. That in said month he verbally authorized Hanna & Konzen, who were real estate brokers at Napoleon in said county, to sell said land at not less than $130 an acre, upon a fair contract, to a purchaser who was a responsible man, for a reasonable payment at the time of the consummation and execution of the deed, and the balance on any reasonable terms to suit the purchaser. Deferred payments were to bear 6 per cent. interest, payable annually, secured by mortgage. That the defendant authorized Hanna & Konzen when and as soon as they found such purchaser, who would buy the lands on the terms stated, to enter

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For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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