missioners are sitting as a board, transacting the public business intrusted to them, it is made the duty of the county auditor, as I have shown, to attend their sessions and to keep a record of their proceedings. This duty is enjoined upon him by statute, and in assuming his official position he engages to perform that duty. It is as much his duty to attend the sessions of the board when it is engaged in hearing and determining matters pertaining to the construction, repair, etc., of gravel roads, and to keep a record of such proceedings, as it is his duty to attend the sessions of the board when it is engaged in the examination and allowance of claims against the county, in passing upon applications for liquor licenses, in acting upon petitions for the location or vacation of highways, or any other business connected with such board, and to keep a record of such proceedings. If a county auditor is entitled to extra compensation for acting as clerk of the board of commissioners while such board is engaged in the discharge of the duties pertaining to the construction of gravel roads, by the same course of reasoning we must reach the conclusion that he would be entitled to extra compensation for attending the meetings of the board and keeping a record of its proceedings when engaged in the dispatch of its business pertaining to any of its enumerated duties. To put such a construction upon the law would create such an endless-chain system of extra compensation to public officers as would put to blush the most greedy official, and destroy the commendable work of the legislature, which for years has been to erect a barrier, by its wise and just laws, against just such attacks as this upon the public treasury. I am convinced, from an examination and consideration of all the laws regulating the fees and salaries of county officers, that the claim of the auditor of Lawrence county, as described in the indictment, was unauthorized by any law now upon the statute books, and was therefore an illegal and unlawful claim, and should not have been allowed. The next inquiry naturally and logically leads me to the consideration of the question, was the allowance of such claim by the appellees, acting as a board of county commissioners, an unlawful act, within the meaning of the statute upon which the indictment rests? Appellees were bound to know that the claim of the auditor upon which they were called upon to act was an illegal claim, and hence not binding upon the county; for they are presumed to know the law, and, as I have shown, there is no warrant in the statute in justification or support of the claim. There is but one theory upon which appellees can be relieved from criminal liability under the charges in the indictment, and that is that in the allowance of the claim they acted in a judicial capacity, and for a Judicial action, although in contravention of a criminal statute, a prosecution will not lie. Indeed, I am told by counsel, in their brief, that it was upon this theory alone that the trial court sustained the motion to quash. I cannot believe that this theory can be successfully maintained. In the first place, if it can, the statute (section 7853, supra) is nugatory, inoperative, and ineffectual. When a claim is filed in the auditor's office against the county (and the law requires all such claims to be so filed), it can only be disposed of in two ways: (1) By the voluntary withdrawal of it by the claimant; or (2) by an action of the board either in allowing or disallowing it. Statutes are not passed for idle or meaningless purposes, and when the legislature declared, as it did in the section just referred to, and section 6548, supra, that it should be unlawful for any board of county commissioners to make any allowance to any county, etc., officer, "not specifically required by law," unless in cases of indispensable public necessity," etc., and "except when the statutes confer the clear and unequivocal authority to do so," it meant to define a crime against the public, and to provide a punishment adequate to the crime. If members of a board of county commissioners can shield themselves from an act declared by the legislature to be a crime, by claiming that they acted in a judicial capacity, then all restrictions as to their powers in the allowance of claims might as well be removed. As I have seen, a board of commissioners is a creature of statute. This being true, it has no authority beyond that expressly given by statute. It necessarily follows that when a claim is presented to it for allowance, and there is no statute which gives it validity, there exists no authority or power to allow it. There being no such authority, it cannot assume or usurp judicial functions to sanction the individual acts of its members, or to protect them from criminal liability. In Waymire v. Powell, 105 Ind. 329, 4 N. E. 887, the court, by Mitchell, J., said: "The compensation of officers is, as a rule, prescribed by law, and it has often been declared by this court that, before any public officer may demand or re ceive compensation out of the public treasury for services performed by him, it is required of him that he show (1) that a specific compensation is allowed by law for the services for which remuneration is claimed; (2) that express authority exists for making payment out of the public funds,"-citing Noble v. Board, 101 Ind. 127; Board v. Gresham, Id. 53; Board v. Harman, Id. 551; Bynum v. Board, 100 Ind. 90; Wright v. Board, 98 Ind. 88. In the case of Board v. Gresham, supra, the court said in reference to the rule above stated: "It is of the highest concern to the public that this should be so; otherwise, it would be within the power of one body of county officials to compensate the other county officers out of the public treasury, as a matter of grace and favor, without limit or restraint." In the case from which I have just quoted, it was held that county commissioners cannot compensate other county officers for official services without express au missioners, and allowed and paid accordingly, constitutes no defense to this action. The supreme court has held that the board of commissioners cannot bind the county by allowing an unlawful claim, and that the payment of such claim in defiance of a statute is not a payment by the county, within the rule that a payment under mistake of law cannot be recovered,"-citing Board v. Heaston, supra. These authorities negative the theory that the appellees acted in a judicial capacity. The two sections of the statute we have under consideration (sections 7853 and 6548, supra) relate to the same subject-matter, and should be construed together. They differ only in verbiage, and that in the former a penalty is prescribed, while in the latter the penalty is omitted. The former is more elastic, in that in cases of indispensable public necessity, to be found and entered of record, the board may be authorized to make allowances which are not specifically provided for by law. In the former, also, the respective officers are named to which allowances are prohibited which are "not specifically prescribed by law," while in the latter the prohibition goes to "any county, township or other public officer," as to the allowance of a claim, "except when the statutes confer the clear and unequivocal authority to do so." By both of the sections the act of making unauthorized or unwar ranted allowances is made unlawful. Construing these two sections of the statute together, I have no trouble in applying the facts charged in the first count of the indictment to them, in reaching the conclusion that such facts constitute a crime, within their meaning, sufficient to put appellees upon trial. I have considered these two sections of the statute in conjunction, for the reason that jointly they fully and forcibly express the legislative intention to make the act complained of a crime, and, while a penalty is only prescribed by section 7853, it is now the settled law in this state that where a statute makes an act unlawful, but fails to provide a penalty, we may look to another statute for the penalty, if such there be. See State v. Buskirk, 20 Ind. App. 496, 48 N. E. 871. thority of law. This court, in Board v. Nichols, 12 Ind. App. 315, 40 N. E. 277, had under consideration the question as to what capacity a board of commissioners acted in considering and allowing a claim against the county, and it was there said: "The board, in hearing such claim, acts merely in the capacity of an auditing committee. Its action is ministerial, and not judicial. An order made by it in allowing or refusing to allow the claim does not rise to the dignity of a judicial determination or judgment." The case of Board v. Heaston, 144 Ind. 583, 41 N. E. 457, 43 N. E. 651, is instructive upon this point. In that case Jordan, J., said: "We have seen that * the board is the agency of the county for the transaction of its business. A portion of this business is the auditing and allowing of 'legal claims.' We are of the opinion, and are constrained to hold, that, when the board examined into and allowed the claims presented to them by appellee, it stood in the eye of the law as the representative of the county, and thereby acted in its administrative capacity, and not in the character of a court; that, while its order so made might be termed quasi judicial, yet it did not attain to the rank of a judicial determination or judgment, so as to bring it under the protection of the rule res judicata. The fact that the statute pertaining to the auditing of claims grants an appeal to the circuit court at the option of the claimant lends no force to the contention that the board acts as a court in allowing the same." In other states the same rule obtains, and it is held that the allowance of a claim by the board is not res judicata. Board v. Keller, 6 Kan. 510; Board v. Catlett's Ex'r, 86 Va. 158, 9 S. E. 999; Abernathy v. Phifer, 84 N. C. 711. In Myers v. Gibson (Ind. Sup.) 53 N. E. 646, while the question was not directly presented, yet in the decision the doctrine announced in the cases above cited was discussed and approved. In that case, in addition to referring to and approving the rule that in the allowance of a claim a county board acts in its executive and administrative, and not in its judicial, capacity, Monks, C. J., said: "It is settled law that a board of commissioners in this state has no powers except such as are expressly given by stat- The law in force until March 11, 1895, a ute, and such as are necessary to the exercise lowed county commissioners to employ and of the powers expressly given; and the pow- pay a clerk, whose duty it was, under the ers so given are limited, and must be exerstatute, to record all proceedings of the cised in the manner provided by statute,”— board, when acting in the capacity of gravel citing Myers v. Gibson, 147 Ind. 452, 46 N. road directors, in a book provided for that E. 914; Board v. Pollard, 17 Ind. App. 470, purpose. Section 6868, Burns' Rev. St. 1894. 46 N. E. 1012. In Board v. Buchanan, 21 Ind. This law, however, was repealed by the act App. 178, 51 N. E. 939, the rule that a board approved March 11, 1895 (Acts 1895, p. 362). of county commissioners, in allowing a claim After the passage of the act of 1895, supra, against the county, acts in an administrative the board of county commissioners had no and not a judicial capacity was recognized, authority to employ a clerk. The charge in Dy holding that the allowance by the board this case, however, is not in the employment of illegal fees to a county clerk was no de- of a clerk in violation of the statutes, but in fense in an action by the county to recover making an allowance to a county auditor such fees. In that case Robinson, J., said: for extra services,-for services which he "The fact that the claim for the fees in ques- was bound to perform by virtue of his office, tion was filed before the board of county com--and in the absence of an indispensable public necessity found by the board to exist, and entered upon its order book. The question has been put at rest in this state,-that a board of county commissioners cannot make such an allowance to a county auditor in the absence of such finding. In Nowles v. Board, 86 Ind. 179, the supreme court said: “In addition to this the thirty-ninth section provides that 'the board of county commissioners shall, unless in cases of indispensable public necessity, to be found and entered of record as part of their orders, make no allowance not specifically required by law to any county auditor,' and makes a violation of this provision a misdemeanor. These services were not found to be, nor were they in fact, such services as are contemplated by the above section, and, as their payment is not specifically required, it follows that the payment is prohibited, and that no recovery can he had for them. These services must be deemed a part of the services for which the salary is allowed, and that sum must compensate the appellant." In Wright v. Board, 98 Ind. 88, appellant, as auditor, filed a claim against the county for services rendered in the establishment of a free gravel road. In passing upon the validity of the claim, the court said: "Where a fixed salary is provided by law, and fees for services are specifically designated, the officer can rightfully claim no other compensation. Unless a statute expressly or by fair implication makes provision for compensation, a claim cannot be enforced by legal process against the county, except where there is a contract stipulating for the services, and the contract is itself within the authority of the county commissioners." See, also, Wright v. Board, 98 Ind. 108; Stropes v. Board, 84 Ind. 560. In the case of Board v. Barnes, 123 Ind. 403, 24 N. E. 137, the board of commissioners declared that "an indispensable public necessity exists during the construction of free gravel roads in Tippecanoe county, whereby the auditor is compelled to perform a large amount of extra labor, for which no compensation is allowed by law." In view of this extra labor, an indispensable public necessity was declared for extra compensation to the auditor. Notwithstanding this declaration, the supreme court held that the auditor could not recover, and in so holding said: "A board of county commissioners cannot add to its power nor give effect to an unauthorized act by any declaration of its own. It cannot make a question of power one of expediency by an assertion or recital. Cobwebs of that sort will be swept away by the courts, and the action of the tribunal so thoroughly examined and explored as to enable the courts to determine the true character of the act or transaction. What cannot be accomplished directly cannot be accomplished by indirection. Declarations will not be permitted to conceal or cover the proceedings, for the courts will strip off covers and ascertain the real nature of the transac tion. We do not, therefore, attach any importance to the recitals in the orders before us, but, putting them aside, we look only to the real act performed by the board. We have no difficulty in ascertaining the real character of the act in this instance, for the purpose sought to be accomplished is transparent. No one can doubt that the purpose of the board of commissioners was to add to the fees of the county auditor. The question, therefore, is, has a board of commissioners power to add to the fees of the auditor of the county? We know that comprehensive powers are conferred upon county commissioners. We know, too, that they are, in a sense, the county. But, after all, the county is no more than a public corporation created by statute, and deriving its powers from the legislature. If a county is not given power to fix the fees of public officers by statute, it can possess no such power. It adds nothing, therefore, to the strength of the appellee's position, to affirm that the board of commissioners is the county. But it is not strictly true that the board is the county. It can by no possibility be true that the board is the county; for, in a just sense, the inhabitants of the organized locality constitute the county. In strict accuracy, the commissioners are public officers representing the county, with powers and duties defined and prescribed by statute. The money which they control is the money of the county, the debts which they incur are the debts of the county, and the authority they exercise is such as resides in them as officers and representatives of the county. But the source of their power is the statute, and the standard by which it is to be measured is that supplied by the legislative enactments. It is true, as we bave suggested, that the grant of a principal power carries by implication such subsidiary powers as are necessary to effectuate the principal power, but the authority to fix the fees of a county officer is not a subsidiary power, nor can it be, since the regulation of the fees and salaries of elective officers is a matter of principal importance in every instance. Our own cases declare that a public officer is not entitled to any other compensation than that fixed by the legislature itself, or by some other officer or body to whom authority to fix the compensation has been delegated." In Lee v. Board, 124 Ind. 214, 24 N. E. 986, a like question was presented, and in deciding it the court said: "The practical question in this, and all other cases of this class, is, was the work for which the public officer asks compensation out of the public treasury such as is embraIced in the general duties of his office, and for which the law provides compensation? If it was, manifestly the commissioners had no power to add to the compensation prescribed by statute. If it was not, then it is pertinent to inquire whether the county commissioners have power to supplement the provisions made by the legislature, by add ing new duties to a public officer, and fixing compensation for the added duties by contract with the officer. Until it can be shown that county boards are invested with power to supply what may be regarded as defects or deficiencies in the law, by enlarging the duties of county officers, and providing compensation for what may be deemed to be extraordinary services, claims of the character of that in question can receive no countenance from the courts. In view of the uniform decisions of this court from its earliest organization until now, and of the prohibitory legislation concerning allowances, which looks in the face of county boards at every turn, it is a matter of surprise that it should be supposed that an inferior tribunal, possessed of limited jurisdiction, such as is committed to boards of commissioners, was the repository of such general and extraordinary power." See, also, Board v. Johnson, 127 Ind. 238, 26 N. E. 821; Waymire v. Powell, 105 Ind. 328, 4 N. E. 886. In the case of Board v. Buchanan, 21 Ind. App. 178, 51 N. E. 939, this court held that a public officer takes and holds his office for the compensation stipulated by statute, whether the duties of the office be increased or diminished. In the same case it was held that an illegal claim for fees allowed to the clerk of the circuit court by the board of commissioners would not constitute a defense to an action by the county to recover back such fees. Under the statute and the authorities, the claim described in the indictment, and which was allowed by the appellees, acting as a board of commissioners, was an illegal, unfounded, and unwarranted claim. It cannot be upheld upon any hypothesis. It is charged that appellees unlawfully and wrongfully allowed this claim, and that the duties performed by the auditor, upon which the claim was founded and allowed, were and are duties which he was and is legally required to perform, as a part of the duties of his office, without extra compensation. The appellees urge that the first count of the indictment does not charge that the allowance made to the auditor was not made as a part of his salary. This was not necessary. It does charge that the claim presented was for extra services performed, pertaining to free gravel roads, and that such claim was illegal and wholly unwarranted. This shows that the claim was for extra work; and it necessarily follows that it was no part of the auditor's salary, which is fixed by law, and the commissioners do not have to allow it. It is further urged that the indictment is not good because it does not charge fraud or corruption. I cannot believe that such omission makes the indictment bad. It charges a specific violation of a statutory crime, in the substantial language of the statute. It charges that the appellees wrongfully and unlawfully made an allowance to a public officer (the county auditor), without first performing mandatory steps re quired by law, and which the law says shall be punished criminally. The public money may be given away without either fraud or corruption, and yet be a violation of the law, and for such violation a prosecution will lie. It has many times been held that an indictment which substantially follows the language of the statute in defining a crime, etc., is sufficient. Of the many authorities so holding, I cite the following: Stewart v. State, 111 Ind. 554, 13 N. E. 59; Benham v. State, 116 Ind. 112, 18 N. E. 454; Graeter v. State, 105 Ind. 271, 4 N. E. 461; State v. Miller, 98 Ind. 70; Gillett, Cr. Law, 132a. It may be suggested that the indictment is not sufficient in substance and form, for the reason that it does not appear that the services of the auditor, for which he was allowed, were not rendered in some other capacity than that of auditor, for which he was entitled to compensation. The indictment does charge that the services for which he was allowed were the services which were required of him to be performed as such auditor. This cannot be a conclusion of law, but a statement of a substantive fact. The duties of a county auditor are prescribed by law, and one of those duties is to act as clerk of the board, and to keep its record. The only service he could perform for the county in such capacity was to act as clerk for the board, and keep a record of its proceedings, while it was engaged, as such board, in the transacting of its business pertaining to gravel roads. If the appellees were acting in the capacity of a board of county commissioners, which the indictment avers they were, and if the services for which the auditor charged were for services performed in his capacity of clerk of such board, which the indictment says he was, then it precludes the idea that either the board or the auditor were acting in any other capacity. It follows as a necessity that the appellees were not acting as a board of gravel-road directors, and that the services for which the auditor was allowed were not performed by him as clerk of the board of gravel-road directors. The statute (section 6868), prior to its amendment in 1895, made the board of county commissioners ex officio a board of gravel-road directors, but it did not make the auditor ex officio clerk of such board. It authorized the board of gravel-road directors to appoint a superintendent and a clerk. They were required to keep a record of their proceedings in a book provided for that purpose by the county commissioners, and it was the duty of the clerk appointed by them to keep such record, and for his services he was to receive not to exceed $1.50 per day for the time actually employed by him. There was no requirement of the statute that the board of gravel-road directors should employ the auditor as clerk, and there is no presumption that they did in this instance, for they were authorized to employ any "suitable person." The act constituting the board of commissioners a board of gravel-road directors went into effect March 24, 1879. See Acts 1879, p. 226 (Burns' Rev. St. 1894, § 6868). In 1895 section 6868, supra, was amended, and all that part relating to the employment of some "suitable person" to act as clerk, and defining his duties, was eliminated. Burns' Rev. St. 1897, § 6868 (Acts 1895, p. 362). So, as the law now is, and has been since March, 1895, the board of gravel-road directors have no authority to employ a clerk. It might be suggested that the services for which appellees, acting as a board of county commissioners, allowed the auditor, might have been for services rendered by him as clerk of the board of gravel-road directors, under an appointment, and before the law was amended in 1895, and that the indictment should have negatived such facts. It, indeed, would be a stretch of the imagination, and a forced construction, that would lead to such conclusion. When the indictment avers that the services for which the auditor charged and was allowed were services which he was required to perform by virtue of his office as auditor, and when we remember that the auditor's salary is fixed by law, and that the statute specifically provides that he "shall receive no other compensation whatever," it would be absurd to hold that, because the indictment did not negative these facts, it should be held as not charging a crime. Another rule of construction in criminal law is that no greater certainty is required in criminal than in civil proceedings. McCool v. State, 23 Ind. 127. Certainty to a common intent is all that is required in criminal pleadings, and an indictment need not be more certain than a civil pleading. Lay v. State (Ind. App.) 39 N. E. 768; State v. Sarlls, 135 Ind. 195, 34 N. E. 1129. Reverting again to the question of pleading an exception, or negativing a state of facts to which the indictment does not apply, it seems that the rule is firmly established that it is unnecessary to plead such exception or negative, except where there is an exception in the statute defining the offense. Then the indictment must negative the exception. The law in relation to pleading exceptions in criminal pleading is that, if the exception is contained in a subsequent clause or statute, it is a matter of defense, and need not be negatived in the indictment. This rule applies even where the exception is created by a proviso in the statute. In Russell v. State, 50 Ind. 174, it was said: "The law in relation to exceptions in a statute is that, if the exception be contained in a subsequent clause or statute, it is a matter of defense, and need not be negatived in the indictment." In referring to that case, and quoting the language above used, the supreme court, in State v. Maddox, 74 Ind. 103, said: "This, we understand, is the settled rule of law on the subject now under consideration." Citing Archb. Cr. Prac. & Pl. (8th Ed.) p. 361. The case of Hewitt v. State, 121 Ind. 245, 23 N. E. 83, was a prosecution for killing a dog. The statute (section 2852, Burns' Rev. St. 1894) makes it a misdemeanor to mischievously kill a dog that has been listed for taxation. This section of the statute contains a proviso to the effect that it does not apply if the dog, when killed, was engaged in committing damage to the property of any person other than its owner, or if it is known to be a dog that will kill sheep, etc. It was urged that the indictment was not good, and one of the objections to it was that the exception contained in the proviso was not negatived. In deciding the point, Mitchell, C. J., said: "It will be seen that the exception is in a substantive clause embraced in the proviso, and not in the clause of the statute which declares and defines an offense. The indictment is good, therefore, within the established rule that where an offense is created by statute, and an exception is made, either by another statute or by another substantive clause of the same statute, it is not necessary for the prosecutor, either in the indictment or by the evidence, to show that the defendant does not come within the exception; but it is for the defendant to prove the affirmative, and which he may do under a plea of not guilty." To the same effect is the case of Mergentheim v. State, 107 Ind. 567, 8 N. E. 568. But in the case before us there is no proviso in the statute, or in any other statute, creating an exception. The offense of which appellees are charged is plainly defined by the statute, and the language used in defining the offense is plain, clear, and unequivocal. There is no hidden meaning in it. The statute simply says that it shall be unlawful for the board of commissioners to do a certain thing, and the indictment charges that they did the very thing which the statute has defined as an offense, and the charge is in the substantial language of the statute. I do not conceive it to be a duty of the court to search other statutes to see if there is not some remote or contingent provision therein contained whereby it might appear that the county auditor had performed some extra or other service not specifically enjoined upon him by virtue of his office, and in some other capacity, for which the commissioners might be authorized to make him an allowance out of the public treasury. If such a contingency exists, then it could be pleaded as a defense, but it never has been held, either in criminal or in civil proceedings, that the complaining party must not only state the facts upon which he rests his case, but must also state the facts upon which his adversary may rest his defense. Under the rule which is unvarying in this state, and adhered to by all the text writers, the indictment did not have to aver any facts tending to show that the appellees might make a successful defense upon the provisions of some other statute. It follows from this |