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 embraced 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

that it was not necessary to charge in the indictment facts showing that the services performed by the auditor were not other services, not required to be performed by him. If such a condition existed, appellees might base a defense upon it, but, in my judgment, the indictment did not have to show such condition.

Having expressed my views upon the general principles involved, and the law as generally applied to the facts charged, I will now briefly review the prevailing opinion, and attempt to show why, in my judgment, my associates have reached a wrong conclusion. The prevailing opinion rests upon four propositions: (1) That the material matters alleged in the indictment are not directly alleged, but stated by way of recital; (2) that it does not appear, except by reference, that the party named as auditor was such auditor at the time the services were rendered; (3) that the averments are not sufficient to bar another prosecution for the same offense; (4) that the indictment does not state the facts which constitute the definition of the offense in the statute, so as to bring the defendants within it.

1. The rule is correctly stated in the prevailing opinion that material matters in criminal pleadings must be directly alleged, and not stated by way of recital; but the rule here is, in my judgment, misapplied. The opinion says that the allegations as to the necessity for the allowance, and as to its specific requirement by law, are by recital, and not by direct averment, because the words "illegal" and "unwarranted" are conclusions of law, and do not describe the offense attempted to be charged. Section 7883, supra, forbids the allowance of any claim by the board of commissioners to a county auditor and other officers named, not specifically required by law, except in cases of indispensable public necessity, which indispensable public necessity shall first be found and entered of record. Section 6548, supra, declares that it shall be unlawful for such board to allow any county or other public officer any sum of money out of a county treasury, except when the statute confers the clear and unequivocal authority to do so. Now, the first count of the indictment charges that the appellees were members of the board, and, while acting as such, unlawfully and wrongfully allowed a specific claim to a county auditor; that there was no indispensable public necessity for such allowance; that no such necessity was found and entered of record; that such allowance was not specifically required by law; that such allowance was unlawfully made for certain pretended services in the performance of certain duties, to wit, extra work on account of gravel roads, as clerk of board, etc. The violation of any criminal statute is an unlawful act, for it is in defiance of law. The indictment says the act charged was unlawful and wrongful. The words "illegal" and "unwarranted," used in the indictment, do not, in my judgment, add

to or take from it. If an act is unlawful, it is both "illegal" and "unwarranted," and it seems plain to me that this is the sense in which they were used in the indictment. In an indictment for assault and battery, it is sufficient to charge the act as being done unlawfully. There is just as good reason for saying that that would be stating a conclusion, and not a material fact, as to say here that the facts before us state a mere conclusion. To my mind, every essential and material fact constituting the offense, as designated by the statutes, is specifically and clearly stated in the indictment.

2. It is urged in the prevailing opinion that it does not appear from the indictment that the party named was the county auditor at the time the services were rendered. Concede, for the argument, that there is no direct averment that he was such auditor; yet every reasonable inference shows that he was. Malott is referred to, named, and described as the "duly elected, qualified, and acting auditor." The pretended services for which he was allowed were for "extra work on account of gravel roads, as clerk of board, for 32 months," etc. I have shown in the former part of this opinion that a county auditor is ex officio clerk of the board of commissioners. I have also shown that until the act of 1895 the board of commissioners, while sitting as a board of gravel-road directors, were authorized to employ a clerk to keep the record, and to pay such clerk a fixed per diem. He was not to be paid so much per month, but so much per day for every day actually so employed. Now, the indictment charges that the allowance was made to him for pretended services as clerk of the board, and not as clerk of the gravel-road directors. If the claim had been for services as clerk of the gravel-road directors, it would have been for a fixed number of days, at a fixed per diem, as designated by statute. The only way a county auditor can act as clerk of a board of county commissioners is to act by virtue of his office, and this duty is enjoined upon him by statute; and the statute, as I have shown, fixes his salary, and specifically says that he shall receive "no other compensation whatever." It seems to me, therefore, that no reasonable construction can be placed upon the language used which would lead to any other conclusion than that it definitely and clearly shows that Malott was auditor at the time the services were rendered for which he was allowed. I cannot believe that courts should resort to fine technicalities and hairsplitting distinctions to shield public officers who have betrayed the trust confided to them, when, in plain violation of a law enacted out of public necessity, they have unlawfully and wrongfully plundered the public treasury, as was plainly done in this case, as shown by the indictment. It seems to me a mere subterfuge to say that the indictment does not show that the allowance was made out of the moneys of the county, as is said in the prevailing opinion, and for this reason

it is bad. Courts take judicial knowledge of the laws of the state, and are bound to know that a board of county commissioners cannot make an allowance, except out of the moneys of the county they represent. It is provided by statute that "neither presumption of law nor matters of which judicial knowledge is taken need be stated in an indictment." Section 1739, Horner's Rev. St. 1897. This was also the rule at common law. A board of Commissioners is, in a large sense, the fiscal agent of the county. In financial matters they do not have jurisdiction over any funds except the county's, and hence, in making an allowance, it is not necessary to enter, as a part of the order, that it is to be paid out of the county treasury, for it follows as a matter both of law and fact. In section 7853, supra, the legislature did not see any necessity for expressing in the statute that the county commissioners should not make any allowance, etc., to be paid out of the moneys of the county. The legislature knew, as courts must know, that that is the only way such allowances could be paid, and it was useless to so express it in the law. The board could not have made an effective order to pay the allowance out of any money over which they had no control, and, as the only funds at their disposal were the county funds, it follows, as a logical and legal conclusion, that the allowance was to be so paid, and hence the averments are amply sufficient in this respect.

3. That the averments are not sufficient to bar another prosecution for the same offense: I am unable to see any merit in this contentention. Succinctly stated, the indictment shows the following material facts: That appellees were members of the board of county commissioners; that Malott was auditor of the county; that on November 27, 1897, appellees, while sitting and acting as such board, unlawfully voted for and allowed said Malott, as such auditor, the sum of $500 for extra work, etc., as clerk of the board, etc.; that there was no indispensable public necessity for such allowance; that no such indispensable public necessity had been found and entered of record; that such allowance was not specifically or otherwise required by law; that said claim was for pretended services rendered, etc.; and that the duties performed by said Malott, for which said claim was filed, pretended, and allowed, were and are duties which he was legally required to perform, as a part of the duties of his said office, without extra pay, etc. The facts thus stated are all plain and distinct. They definitely designate the date of the allowance, and all the acts constituting the offense. The facts are in perfect harmony with the statute. The offense is defined in almost the exact language of the statute, and the acts constituting the offense are clearly stated. All that is required in a criminal charge is that it should be prepared with that degree of certainty that the court and jury may know what they are to try, and to acquit the de

fendant of or punish him for; that the defendant may know what he is to answer to; and that the record may show, as far as may be, for what he has once been put in jeopardy. Whitney v. State, 10 Ind. 404; McLaughlin v. State, 45 Ind. 338; Gillett, Cr. Law (2d Ed.) 125. The law does not require that minute facts be stated so as to save the defendant the necessity of introducing parol evidence to show the identity of the offense charged on a plea of former jeopardy. State v. Malone (Ind. App.) 35 N. E. 198. To my mind, the indictment is sufficient under the general provisions of section 1755, Horner's Rev. St. 1897. It is there declared that the indictment will be sufficient if it can be understood therefrom (1) that it was found by the grand jury; (2) that the defendant is named; (3) that an offense was committed within the jurisdiction of the court, or is triable therein; (4) that the offense charged is clearly set forth in plain and concise language; (5) that the offense is charged with such a degree of certainty that the court may pronounce judgment upon conviction. It seems to me that all these requirements are embodied in the indictment in this case. Section 1756, Horner's Rev. St. 1897, after enumerating certain defects for which an indictment shall not be quashed, provides, in subdivision 10, that it shall not be quashed "for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." I am utterly unable to see how the substantial rights of the defendants (appellees) could be prejudiced in a trial under the indictment upon the facts, on the merits of the case; and, for the reasons given and the authorities cited, I am led to the conclusion that the averments of the indictment are sufficient to bar another prosecution for the same offense.

4. As to the fourth reason urged against the sufficiency of the indictment in the prevailing opinion, what I have said as to the facts stated in defining the offense is applicable, and I will not notice it further.

The whole question here resolves itself to this proposition: The salary of the auditor was fixed by law. He was not entitled to any extra fees or other compensation. The appellees, acting as a board of commissioners, unlawfully allowed him $500 out of the public treasury, and thus increased his salary to that extent, in plain violation of the statute. The indictment, it seems to me, shows these facts with sufficient certainty, and the motion to quash should have been overruled.

(62 Ohio St. 598)

KELLY v. CARTHAGE WHEEL CO. (Supreme Court of Ohio. May 8, 1900.) EMPLOYMENT FOR YEAR GUARANTY OF CERTAIN AMOUNT-INTERPRETATION OF CONTRACT RENEWAL BY IMPLICATION - UNJUSTIFIABLE DISCHARGE-DAMAGES.

1. In order to constitute a contract of employment for a year, it is not essential that the agreement shall contain express words of em