The Medina sentinel. [volume] (Medina, Ohio) 1888-1961, 1915-10-15
Court Decides
Against FOTney

/ . = u
Judge N. H. Mcclure handed down
his decision Saturday morning in the
case of S. E. Forney VS.. Jacob Nolt.
SiIas Weidman and VIM. H. Owen, as
the Board of Trustees Of Homer town
ship, in an action to recover a 2 per
cent. fee alleged to be legally due the
plaintiff in the disbursement Of $19,-
843.73 belonging to Homer Township
Road District.
| A jury trial was waived by the par
ties and the cause was submitted to
the court upon an agreed statement
of facts, in substance as follows: That
the plaintiff now is and was during the
year 1914, the duly elected and quail
fed Township Trustees of Homer
township, Medina county, Ohio. That
the defendants are the duly qualified
and acting Board of Township Trus-
tees Of Homer Township and this suit
is prosecuted against them in their Of
fetal character as such Board.
That the Homer Township Road Dis
trict embraces the whole of Homer
Township and was erected about Nov.
4, 1914, under the provision of Section
1898, 1852, General Code, and thereaf-
ter bonds were sold and money raised
and employed for the purpose of i'm
proving certain of the public roads of
said township.
That the funds derived from the is
sue and sale of bonds of said road dis
trict, came into the hands of the plain
tiff and that plaintiff as treasurer Of
Homer township, on the orders Of the
defendants as such Board of Trustees,
disbursed the total sum of $40, 1867
of which amount, $19,843.73, was fund
of the Homer township road district
and $89250 funds of Homer township.
The defendants, the Board of Trus-
tees, admit that there was and is due
to the plaintiff the sum of $17.85, be-
ing two per centum on $89250, but
claim the plaintiff is not entitled to
fees or compensation for disbursing
said sum of $19,843.73.
Judge McClure's opinion was in part
as follows, in favor Of plaintiff.
"The proposition that there is no
implied obligation at common law to
pay fees or compensation to a public
officer, but that the same are entirely
subject of the legislative discretion,
is too well settled to admit of argu-
ment.
"It is conceded by counsel for plain
tiff that while Section 7052 G. c., es-
pecially provides for the compensation
Of the Township Clerk for services
rendered the Road District, there is
no where in the Act authorizing the
creation and organization. of Town
ship Road District (94 O. L. 1917, and
which bears the section numbers re-
felred to, either as originally enacted
or subsequently amended, any provis-
ion authorizing the payment of fees
or compensation to the Township
Treasurer.
"It is urged that the provisions of
Section 1918 G. C. are broad enough
to cover the allowance by the Town
ship Trustees of the fees claimed by
the plaintiff in this suit.
! "Section 1918, G c., provides as
follows: The treasurer shall be allow
ed and may retain as fees for receiv-
ing, safe keeping and paying out
money belonging to the Township
Treasury, 2 per cent of all moneys
paid out by him upon the order of the
township trustees
"In order to sustain the contention
of the plaintiff there must be found to
be existing an intent on the part of
the legislature that moneys derived
from the sale of bonds by township
road district received and disbursed by
the township treasurer should be sub
ject to the payment of the percentage
of 2 per cent to that officer as pro-
vided by Section 1918, G. C.
"Manifestly the legislature cannot
be said to have in contemplation the
payment of fees to township treas
urer for disbursing the funds of road
district, at the time of the passage of
the Act now known as Section 1918,
G. c., which was adopted in exactly
it's present form, so far as the provis-
Ion relating to the payment OF fees is
concerned, on Feb. rs, 1869 (66 0. l..
page 14), while the Act authorizing
township trustees to create road dis
tricts and improvement of roads there
in, now known as Sections 7OSS-7O52,
G. G., was passed April 12, 1900, (94
0. L. 1917
Moreover the claim is advanced by
the defendants that the statute has no
annlication in this case for the ran