TOWNSHIP TRUSTEE DISQUALIFIED FROM VOTING FOR REDUCTION OF ROAD ASSESSMENT AGAINST ABUTTING OWNERS.

Court of Appeals for Guernsey County.

#### Samuel Oliver v. Clifford O. Brill, as Treasurer of Guernsey County, Ohio, et al.

Decided, April 19, 1921.

*Constitutional Law*— Road *Assessment Levied by Tovjnship*Trustees— *Disqualification of a Trustee Who is an Abutting Owner*— From *Voting to Reduce the Assessment*— Members *of a Legislative Body may not Vote for a Proposition in tohich they have a Pecuniary Interest Adverse to the Public Interest.*

Where township trustees pass a resolution providing for the payment of a certain part of the cost of a road improvement by the township and a certain part by the abutting land owners, a member oí such board, owning land abutting on such improvement within his township, is disqualified from offering a resolution at a subsequent meeting and casting the deciding vote therefor by which the amount to be paid by abutting land owners is reduced, and the amount to be paid by the township is increased, and which inures to his own pecuniary advantage in a substantial sum.

Hon. *James Joyce*and *Robert T. Scott, Esq.,*for plaintiff.

Hon. *Fred L. Rosemond*and *G. D. Dugan,*Esq., for defendants.

Farr, J.

This canse was heard on appeal. The action below was to restrain the treasurer of Guernsey county from collecting certain assessments made by the trustees of Center township, for the purpose of a certain road improvement known as the' National Pike.

The case whs heard below, and a judgment entered, from which an appeal was taken to this court.

The facts necessary to a proper understanding of the issues are as follows:

In the year 1914 it was desired to improve what is known as the National Pike” through Guernsey county, including Center township. Looking toward that end, the trustees of the *130various townships through which the improved roadway would pass, were requested to pass the necessary legislation providing for the discharge of a part of the obligation to be incurred for the improvement, which *wks*undertaken under favor of the law of Ohio, as then provided in 102 Ohio Laws, page 343, or Section 1208, of the General Code, which related to the apportionment of the expense of certain road construction.

Later, action ivas taken by the trustees of Center township under the provisions of Section 1210-1, General Code, 103, Ohio Laws, 457.

After the passage of the original resolution by the township trustees January 1, 1915, further steps were taken looking toward the improvement of the road. By the passage of that resolution it was decided that the township should provide for twenty-live percent of the cost of the improvement — fifteen percent to be paid by the township and ten percent by the abutting property owlners. At the time this resolution was passed, John Boyd, John Noble and Winfield M. Larrick were the trustees of Center township. Boyd’s real estate abutted for about 4700 feet on the improvement.

The Board of Trustees met on the 5th day of June, 1915, with reference to this matter and passed another resolution as follows:

The board of trustees met on the 5th day of June. 1915, seconded by No'ble. Resolved, That the trustees of Center township assume three per cent, of the ten per cent, that the abutting land owners along the National Pike were to pay for the improvement on said road.”

The vote was as follows: Boyd, yes; Noble, yes; Larrick, nay. On the 16th day of August, 1919, still another resolution was passed by the board of trustees of Center Township, which at that time had changed, as to membership, there being but one of the former members at the time the resolution was passed in June, 1915, continuing on the board, two other persons having been elected at a subsequent election. The action of the board on August 16, 1919, rescinded the resolution of June 5, 1915.

*131The three precent of the ten percent which was assumed by the resolution of June 5, 1915, should not be understood as three percent of ten percent, but 3 percent deducted from 10 percent, leaving a 'balance of 7 percent.

The assessment certified by the subsequent board of trustee* to the county auditor of Guernsey county, and by him placed upon the tax duplicate for collection against the abutting property owners, was for the full amount of the ten percent to be paid by the abutting property owners along this improved roadway; that is to say, that instead of certifying seven percent to be paid by these abutting property owners, they were to pay ten percent, as originally provided.

The contention arises therefore with reference to the assessment certified and the one which it is claimed should have been certified. There is, of course, a difference in these assessments in a substantial sum and it is to enjoin the collection of the amount between seven and ten per cent., that this action was brought; Oliver claiming that he should pay only seven, while the treasurer of Guernsey county and the trustees of Center township claim that he should pay the full ten per cent.

It therefore turns upon the question of the right of John Boyd to offer the resolution of June 5, 1915, thereby relieving himself, as .an abutting land owner, of 3 percent and by his deciding vote carry the resolution in the affirmative. It will be recalled that Harriet voted nay; Noble voted yea.

As above stated, Boyd presented the resolution and moved its adoption, and voted for it; there is therefore no dispute but that it was Boyd’s vote by which the resolution w*as passed. Boyd, however, later disposed of the property.

The vital issue is, therefore, as to his right to offer and vote for the resolution, in view of the fact that at that.time he was an abutting property owner on the improvement of the National Pike to the extent of 4,706 feet, and it is practically conceded that if the township paid three of the ten percent assessed against these abutting property owners, that such payment would be a pecuniary advantage to Boyd of about $300.00; this is probably not the exact.amount, but sufficiently correct for the present *132purpose; therefore did John Boyd have the right as a township trustee to offer and east the deciding vote for that resolution by which this three per cent, additional was assumed by the township, mailing a total of eighteen per cent, to the township and seven per cent to the abutting property owners; or in other words, did John Boyd have the right as a public official to’ act to his own pecuniary advantage, and to the same extent to the public detriment ?

The principle involved here is discussed in 22 Ruling Case Law, 461, paragraph 124, as follows:

> “Every public officer is bound to perform the duties of his office faithfully and to use reasonable skill and diligence and to act primarily for the benefit of the public.”

Practically to the same effect it is provided in 29 Cyc. 1435. Supporting the above text is *Horning*v. *State,*19 N. E. 153, where the general principle as to the conduct of public officials where their own pecuniary advantage is involved is declared as follows:

> “A township trustee is the agent of his township in the transaction of its business, and hence in the performance of his duties, he acts in a fiduciary, as well as an official, capacity. Therefore the rule which requires fair dealings and disinterested conduct on the part of an agent or trustee towards those he represents applies, with full force, to a township trustee. The law will not allow an agent or a trustee to place himself in such an attitude towjards his principal or his *cestui que*trust as to have his interest amenable to that rule as any other agent or trustee. As applicable to private rights, the enforcement of such a rule is imperatively necessary, and as a matter of public policy, the recognition of such a rule is of equal if not greater importance. Greenhood Pub. Pol. 302.

> “A public officer is impliedly bound to exercise the powers conferred on him with disinterested skill, zeal, and diligence, and primarily for the benefit of the public. ’ ’

And it is likewise declared in *County of Oconto*v. *Hall et al,*2 N. W. 291, where the syllabus provides in part as follows:

> “Members of a legislative body, or municipal board, are disqualified from voting upon any proposition in which they have *133a pecuniary interest adverse to that of the municipality which they represent.”

Lyon, J., speaking for the court at page 294, observes as follows:

> “The general rule of the common law is that members of a legislative body or municipal board are disqualified to vote therein on propositions in which they have a direct pecuniary interest adverse to the state or municipality which they represent. The rule is founded on principles of natural justice and sound public policy. Perhaps the only recognized exception to this rule is the ease where the body or board is permitted to fix the compensation of its members. This exception goes upon the necessity of the ease, and the fact that all of the members are equally interested, and it has been well said that no principle can be derived from it.”

> “In *Coles*v. *Trustees of Williamsburgh,*10 Wendell, 659. the same principle was applied to a village trustee. Mr. Justice Nelson said in substance that such trustee was disqualified by general principles of law to vote on a certain proposition before the board of trustees affecting his property.”

A very recent case and well upon the point is *Stahl et al*v. *Board of Supervisors et al,*11 A. L. R. 185, 175 N. W. (Iowa) 772 where it is held that one owning laud within a proposed drainage district which will be largely increased in value by the estah lishment of the district can not east a deciding vote for the estaolishment of such district. See also *Drainage District*v, *Hutchins et al,*84 N. E. (Iowa) 715. *Drainage District No. 1*v. *Smith et al*(223 Ill. 417) 84, N. E. 376. *Levee District*v. *Jamison, 75,*S. W. (Mo.) 679.

The same principle is declared in *U. B. Church*v. *Vandusen,*37 Wis. 54. *Picket*v. *School Dist. 25 Wis.,*551; *U. S. ex rel Masslich*v. *Saunders, City. Tr et al,*124 Fed., 124; *State*v. *Hoyt.*2 Or. 246.

The facts in the foregoing cases have not been discussed for the reason that they are scarcely important in view of the fact that the cases are declaratory of the common law in the parts cited, and which must control here since there is no specific Ohio statute on the subject. R. *R. Co.*v. *Morris,*6 C. D. 640 *134and *Adkins*v. *City of Toledo et al,*17 C. D. 417, are cited for defendants, but upon examination are not found to be particularly upon the point, while *Insurance Co.*v. *Harvey,*72 O. S. 188, announces the correct principle and is somewhat helpful here.

It is true that the section of the General C'ode in force at the time, Section 1210-1 General Code, 103 O. L. 457, specifically provides that:

> “The township trustees of any township in which a road is constructed under the provisions of this chapter may, by resolution, waive any part or all of the apportionment of the cost and expense of such road as herein provided to be paid by the county or abutting property owners and assume any part or all of the cost and expense of such road improvement in excess of the amount received from the state up to the entire cost and expense of such road improvement without an assessment upon the county or owners of abutting property upon such road.”

However, it wias not the purpose of the foregoing statute to so far abrogate or change the common law rule as to permit a public official to use his authority as such t.o promote his own pecuniary welfare; clearly it applies only in a situation where no financial or material personal advantage is to be gained because every public official is, in a way, an agent and as such, owes his first duty to his constituents and the unselfish discharge of every official obligation; in fact, he is charged with the exercise of the most perfect good faith as expressed in the term or maxim *“uberrima*fides” any less obligatory rule would afford opportunity for unconscionable advantage.

In the instant case Boyd would be benefitted in the sum of approximately $300.00, which would necessarily have to be paid by the people by whose favor he obtained office; therefore the foregoing cases and authorities rest well within the rule of reason and are fairly conclusive of the issue here.

It follows, therefore, that for the reasons given, judgment must be entered for defendants and it is so ordered.

Judgment for defendants. Petition dismissed.

Pollock and Roberts, JJ., concur.