tions 2, 3, 7, and 8 of an act in force June 5, 1883 (Acts 1883, p. 48); also section 7853, Rev. St. 1894 (section 5766, Rev. St. 1881). They further insist that, conceding that the commissioners allowed the claims to appellee, as he alleges, however, in doing so, they acted in their administrative or ministerial capacity, and not as a court, and that the principle of res adjudicata does not apply, and the county is not estopped to inquire into the illegality of these allowances. They further contend that, conceding that they acted in the matter as a court, the claims allowed were forbidden by law, and hence there was an absence of jurisdiction; while upon the side of appellee his learned counsel contend that in allowing these claims in the manner and form as shown by this paragraph of the answer the board of commissioners of Huntington county acted as a court, and in passing upon, and allowing these claims in favor of appellee it exercised its judicial powers, and that it had jurisdiction in the premises, and that its judgments rendered under the alleged facts are valid, and a complete bar and estoppel against the county. They also insist that, the board having the power to judicially act and decide in the matter, its judgments, right or wrong, are binding upon the county, and cannot be collaterally called in question. The contentions and argument of appellee's counsel from their standpoint are to some extent supported by authorities cited, among which are decisions of this court. The manifest theory of the cause of defense as outlined by the facts alleged in this answer is that of res judicata. It is a confession of appellant's cause of action, but seeks to avoid it upon the ground that the claims mentioned in the complaint have been adjudicated between the parties in the commissioners' court, and that appellant is thereby estopped from contradicting in this action the verity and binding force of the alleged judgment rendered. The trial court, in overruling the demurrer to this answer, in effect adjudged that the facts therein averred were sufficient to constitute this defense. Boards of commissioners, under the law, in the discharge of their duties have, at least, a dual character. In some respects they act judicially, and the law regards them as a court, and from their decision an appeal lies in this state, under section 5772, Rev. St. 1881 (section 7859, Rev. St. 1894), by a party aggrieved, to a higher court. In other respects they act in an administrative capacity, as the representative of the county. See section 197, Elliott's Gen. Prac., and cases there cited. When they rightfully exercise their powers as a court, it is settled by the authorities that they are to be treated as such, and their judgments rendered or orders made cannot be collaterally impeached, and the principles of former adjudication are applicable thereto. But if, upon the contrary, the commissioners of Huntington county did not, under the law, in allowing the claims of ap pellee, act as a court, but were simply in the discharge of administrative duties, and the orders so made can be said to be but quasi judicial, then, we think, it must follow as a legal consequence that the appellee cannot, by virtue of his defense alleged, shield himself from liability as against appellant's right to recover the money which he, as it is averred, has extorted and received in defiance of law. The next inquiry is: In what character did the commissioners act, and what functions were they discharging, when they allowed the claims or demands of appellee, in controversy? By section 7815, Rev. St. 1894 (section 5731, Rev. St. 1881), the board of commissioners seems to be created, in the first place, for "transacting county business." However, it is well settled that these boards have such other powers and duties, judicial and otherwise, as may be lodged in them by the legislature. Section 7830, Rev. St. 1894 (section 5745, Rev. St. 1881), prescribes their duties, among which are: "(2) To allow all accounts chargeable against such county." "(4) To perform all other duties that may be enjoined on them by any law of this state." It is true, as we have said, that under this last provision, in the discharge of duties enjoined upon them by statute, the commissioners, in many cases not necessary here to mention, act as a court, and their decisions are regarded as judgments, from which an appeal will lie under section 5772, Rev. St. 1881 (section 7859, Rev. St. 1894), which grants appeals generally to the circuit court. It is likewise true that, when administrative duties are enjoined upon these boards by law, from their action thereon no appeal can be taken, unless especially authorized by statute. Board v. Davis, 136 Ind. 503, 36 N. E. 141. The statutes relative to the collection or allowance of claims against a county have in later years undergone some changes, and such a construction has been placed upon this procedure by the courts of the state that indicate a holding to the effect that, at least as the law now stands, the commissioners, in hearing the claims of a creditor of the county, do not act in their judicial capacity. By an act of 1879 provisions were made for the filing and allowance of claims. The first section of that act, which is section 7845, Rev. St. 1894 (section 5758, Rev. St. 1881), provides: "That any person or corporation having a legal claim' against any county, shall file it with the auditor to be presented by him to the board." Section 2 (section 7846, Rev. St. 1894; section 5759, Rev. St. 1881) requires the commissioners to examine into the merits of all claims so presented, and they may, in their discretion, allow the same in whole or in part. Section 3 (section 7856, Rev. St. 1894; section 5769, Rev. St. 1881) provides for an appeal to the circuit court, and section 4 (section 7847, Rev. St. 1894; section 5760, Rev. St. 1881) provided that no court should have original jurisdiction of any claim against a county except in the manner provided in the act. By an act of 1885 (Acts 1885, p. 80) section 3 of the act of 1879 was amended, and now exists as section 7856, Rev. St. 1894 (section 5769, Rev. St. 1881). In the case of Bass Foundry & Machine Works v. Board of Com'rs of Parke Co., 115 Ind. 234, 17 N. E. 593, this legislation was reviewed, and it was there held, in effect, by this court, that under the law as it stood subsequent to the amendment of 1885 the presentation of the claim to the commissioners in the first instance was but a condition precedent to the claimant's right to institute a suit upon it in the circuit or superior court. Mitchell, J., speaking for the court in that case, on page 239 (115 Ind., and page 595, 17 N. E.), of the opinion, said: "After a good deal of hesitation, we are constrained to the conclusion that the purpose of the act as it now stands was to require claims against counties to be first presented to the respective boards of commissioners before bringing suit. This is to the end that a county shall not be involved in litigation which might be avoided by affording it the opportunity to discharge its legal obligations without the expense of a suit." In the case of Board v. Stock (Ind. App.) 36 N. E. 928, the question as to the requirements of the law in regard to collecting claims against a county was considered by the appellate court of this state. It was there said by that court: "The presentation of the claim before the board is a condition precedent to the right to maintain a suit upon the claim. * * The filing of the claim with the board is in the nature of a demand upon such board to pay the claim." In Board v. Nichols (Ind. App.) 40 N. E. 277, the matter was again considered by this latter court. In the case last cited there was an attempt to plead a former adjudication of the claim before the board of commissioners. In considering this point the court said: "The object of the present statutes in requiring a claim against a county to be first filed and presented to the board of commissioners for allowance before bringing suit thereon is to give it an opportunity to discharge its legal obligations without the expense of a lawsuit; citing Bass Foundry & Machine Works v. Board of Com'rs of Parke Co., supra. "The board, in hearing such claim, acts merely in the capacity of an auditing committee. Its action is ministerial, and not judicial. Any order made by it in allowing or refusing the claim does not rise to the dignity of a judicial determination or judgment." We cannot agree with appellee that, under the statutes as they existed when the allowance in question was made, presenting his claims to the commissioners was, in effect, the institution of a suit by appellee against the county for the recovery of the money demanded, and that the order made allowing the same is a judgment of a court, which, under the rule of former recovery, cannot be collaterally assailed. If it was a suit against the county for the recovery of money in the sense urged by counsel, then the claimant was the plaintiff, and the county the defendant, and the commissioners were in the discharge of a double duty, acting as a court and also as the representative of the defendant, or otherwise the county could not be said to be in court. Such a construction as contended for apparently leads to an absurdity. It would follow that the court and the party defendant were virtually the same. It is an axiom of the law that no man can be a judge in his own case. We have seen that by section 7830, Rev. St. 1894 (section 5745, Rev. St. 188), 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 its 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 of 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. The right of appeal from the action of boards in their administrative character is frequently conferred by statute. The appeal in such cases is not permitted because the action of the board is considered judicial, but it is granted as a method of getting the matter involved before a court, that it may be determined judicially. It may be said, however, that, in view of the fact that at the time of the enactment of the statute in regard to filing claims there existed a general right of appeal from all judicial decisions of the board under the section to which we have referred, but notwithstanding this fact the legislature did especially authorize an appeal from an order disallowing a claim in whole or in part, that fact might be accepted at least as evidence tending to show a legislative recognition that the act of the board, in the matter of allowing claims, was not judicial, and that, therefore, an appeal would not lie therefrom under the section authorizing appeals in general. This latter statute applies to decisions of the board which are of a judicial character, and is not applicable to those made in matters pertaining to its administrative or ministerial duties, and we must presume that the legislature recognized that fact. Bunnell v. Board, 124 Ind. 1, 24 N. E. 370. It is held by the following decisions that the allowance of a claim by a board of commissioners is not conclusive, but only prima facie evidence of its correctness, and, in effect, not res adjudicata. Commissioners v. Keller, 6 Kan. 510, Board v. Catlett's Ex'rs, 86 Va. 158, 9 S. E. 999; Abernathy v. Phifer, 84 N. C. 711. As bearing upon the question, see, also, Hunt v. State, 93 Ind. 311; Wolfe v. State, 90 Ind. 16; Bunnell v. Board, supra; and State v. Board of Com'rs of Warren Co., 136 Ind. 207, 35 N. E. 1100. Again, if we consider the question from another standpoint, we must reach the conclusion that the county is not estopped or precluded from calling in question the order of the board allowing the claims, for the reason that there is an absence of mutuality. One of the essential elements of an estoppel by judgment is that both litigants must be alike concluded by the judgment, or it cannot be set up as conclusive upon either. Freem. Judgm. § 159; Hunt v. State, 93 Ind., at page 322 of the opinion. powers as are conferred upon them by law. They act by a board of commissioners, whose authority is defined by statute. One of the powers conferred is to collect taxes levied upon the people and property within the county. In the disposition of the money thus collected into its general treasury, the board has not unlimited discretionary choice as to the objects upon which it shall be expended. It can only be applied to certain specified objects; and the building of railroads is not one of these objects, or necessary to carry into effect any of the purposes for which such corporations were created." A board of commissioners cannot illegally make an allowance under the guise of making the same for services voluntarily rendered or things voluntarily furnished. Gemmill v. Arthur, 125 Ind. 258, 25 N. E. 283. The case of Board v. Ellis, supra, was an action by Richmond county, in the state of New York, to recover of the defendant money allowed to him by the board of supervisors upon accounts not legally chargeable to that county, and it was there held that the action could be successfully maintained. The rule preventing the recovery of money voluntarily paid has no application under the facts in this case. As charged in the complaint, the claims were allowed and the money paid without any legal authority for so doing. In view of the alleged facts, these claims were not only allowed in violation of law, but they were presented by the appellee, and the money of the county unlawfully received by him, and he is chargeable with knowledge of the illegal acts. It was no payment by the county. The latter, as the principal, had no part in the payment. It could not, as a public cor Under the act of 1885, had the claim of appellee been disallowed in whole or in part, he had the option to either appeal or institute an independent action against the county in the circuit court. In that event the decision of the board disallowing his claim could not have been pleaded against him as res judicata in his action in that court. If the order did not bind the appellee, then it can be said that mutuality was wanting, and under the rule just stated it could not bind the county. In any view, we think it must be held that appellee cannot successfully in terpose the defense set up in his answer to the alleged cause of action, and the court erred in overruling the demurrer thereto. Acting, then, as the representative or agency of the county in allowing the claim in controversy, did the board bind the former by their action in awarding the appellee the|poration, be held to consent to the payment money thereon, as charged, without warrant of law, and in defiance thereof? In their administrative capacity the commissioners exercise their powers as public or special agents, and cannot exceed the authority conferred upon them by law. Within legal limits, or scope of their authority, their action in auditing, determining, and allowing the amount due to a creditor of the county, in the absence of fraud, or perhaps mistake, binds the latter. But they cannot bind the county by allowing and ordering a claim to be paid, not legally chargeable to it, or the allowance of which is prohibited by statute. They have not unlimited choice as to the objects to which the money of the public shall be applied. Harney v. Railroad Co., 32 Ind. 244. See, also, Shirk v. Pulaski Co., 4 Dill. 209, Fed. Cas. No. 12,794; People v. Supervisors, etc., of Blackman, 14 Mich. 336; Board v. Ellis, 59 N. Y. 620, and cases there cited. 4 Am. & Eng. Enc. Law, p. 389. In Harney v. Railroad Co., supra, this court, per Worden, J., on page 246 of the opinion, said: "The counties are corporations created for the purpose of convenient local municipal government, and possess only such of or expenditure of the public money in defiance of law. Awarding to the appellee this money, under the alleged facts, was, in a legal sense, equivalent to an unlawful appropriation of the county's money to his own use by the aid of its board of commissioners. The allowance and payment of the money being unlawful, the commissioners did not act within the scope of their authority, and therefore did not bind the county. Board v. Ellis, supra; Lee v. Board, 124 Ind. 214, 24 N. E. 986. Independent of the right given by section 6549, Rev. St. 1894, to recover back the money upon the part of appellant, which statute the appellee mildly insists has no application to an action under the facts in this case, we are of the opinion, however, that a right of action exists in favor of appellant. If the appellee has received and has the money of the county, under such circumstances that in equity and good conscience he ought not to retain the same, and which ex æquo et bono belongs to the county, an action for its recovery will lie in favor of the latter. McFadden v. Wilson, 96 Ind. 253, 257, and authorities there cited; Lemans v. Wiley, 92 Ind. 436. If, under the facts in the case at bar, we should place the construction on the law as contended for by appellee, then a way would be paved by which it would be rendered easy for any person, under the guise of a legal claimant against a county, through the aid of its commissioners, if the latter were inclined to close their eyes to legal prohibitions, to unlawfully obtain and appropriate to his own use the public money, and, when called upon in a court of justice to account for the same, deny the right of the county's recovery upon the ground of res adjudicata. Such, in reason, is not the law. It is not essential in this appeal that we should examine the various claims alleged to have been unlawfully allowed to appellee in order to determine their validity. Without deciding, we may here, however, suggest that we recognize certain items in the claims allowed that were not legally chargeable to the county, and, as the judgment must be reversed, we must presume that upon another trial the lower court, under the issues and the law, will properly adjudge whether a part or the whole of the claims in controversy were illegally allowed and paid to appellee, and award judgment accordingly. As we have held that the orders of the commissioners allowing the claims are, at least, prima facie evidence of their correctness, and the appellant, by its action, having, in effect, assailed the same, the burden is cast upon it to overthrow them by showing that the claims in controversy were not legal charges against it for the reason that there was no law which authorized them to be allowed in favor of appellee. The case of Snelson v. State, 16 Ind. 29, and other similar decisions of this court, which appellee insists are controlling of the point involved herein, in view of the present law relative to the allowing of claims against counties, as construed by the later decisions, must be deemed to be modified as to the broad doctrine therein enunciated, and under the facts and circumstances in this case we cannot accept them as authority on the particular question involved. For the error in overruling the demurrer to the second paragraph of the answer the judgment is reversed, with instructions to the lower court to sustain the demurrer to said paragraph, and for further proceedings in accordance with this opinion. (144 Ind. 231) STATE ex rel. WILSON v. WELLS.1 (Supreme Court of Indiana. Oct. 10, 1895.) TOWNSHIP TRUSTEES-TERMS OF OFFICE. Const. art. 15, § 2, prohibits the legisla ture from creating any office the tenure of which shall be longer than four years, and Const. art. 15, § 3, declares that, where it is provided that any officer shall hold his office for a given term, such provision shall be construed to mean until his successor is elected and qualified. Acts 1889, p. 344 (Rev. St. 1894, § 1 Rehearing denied, 43 N. E. 133. 6293), requires township trustees to enter upon the duties of their office on the first Monday in August following the April general election. By Acts 1893, p. 192 (Rev. St. 1894, § 6290), the April election was abolished, and it was provided that township trustees should be elected at the November general election. Held, that a township trustee elected at the November, 1894, election is entitled to the immediate possession of the office where the previous incumbent was elected at the April, 1890, election. Appeal from circuit court, Grant county; J. L. Custer, Judge. Information by the state upon the relation of Daniel E. Wilson against James M. Wells to inquire into respondent's right to hold the office of township trustee. A demurrer to the information was sustained, and the relator appeals. Reversed. Elliott & Elliott, for appellant. St. Johns & Charles and Brownlee & Paulus, for appellee. HOWARD, C. J. At the township election held in April, 1890, the appellee was elected township trustee of Center township, Grant county; and at the general election held in November, 1894, the appellant's relator was elected the successor of the appellee in said office. On November 14, 1894, the relator, having duly qualified, filed his bond as such township trustee and made demand on appellee for possession of said office, but was refused, the appellee claiming to be entitled to continue in the office until the first Monday of August, 1895. Thereupon the relator brought this action by way of information, setting up all the facts and praying that he be placed in possession of the office. To this information the court sustained a de murrer. The statutes relating to the election and terms of office of township trustees, and necessary to be considered in the case before us, are as follows: By sections 57 and 59 of an act approved April 21, 1881 (Acts 1881, p. 482; Rev. St. 1881, §§ 4735, 4737), it was provided that the election of the township trustee should take place on the first Monday of April, 1882, and every second year thereafter; and that his certificate of election should entitle him to qualify and enter upon the duties of his office at the expiration of 10 days after his election. By an act approved March 9, 1889 (Acts 1889, p. 344; Rev. St. 1894, § 6293), the foregoing provisions were so far modified as to require that the township trustee should enter upon the duties of his office on the first Monday of August following such election. By an act approved March 11, 1889 (Acts 1889, p. 425; Rev. St. 1894, §§ 8066, 8067), it was provided that, on the first Monday of April, 1890, and every fourth year thereafter, a township trustee should be elected in each township, to hold his office for four years and until his successor should be elected and qualified; and also that thereafter no such trustee should be eligible to said office more than four years in any period of eight years. By an act approved March 2, 1893 (Acts 1893, p. | after"; that is, the trustee should take his 192; Rev. St. 1894, § 6290), the April election was abolished, and it was provided that the township trustee and other township officers should be chosen at the general election to be held in November, 1894, and every four years thereafter, and that the election of township officers should be conducted under the provisions of the law governing said general elec. tion. One of the provisions relating to the general election in November is that at such election "all existing vacancies in offices and all offices the terms of which will expire before the next general election thereafter, shall be filled, unless otherwise provided by law." Acts 1881, p. 482; Rev. St. 1894, § 6190; Rev. St. 1881, § 4678. The constitution in article 15, § 2, prohibits the legislature from creating any office the tenure of which shall be longer than four years; and in section 3 of the same article it is declared that, when it is provided in that instrument, or in a statute thereunder, that any officer, other than a member of the general assembly, shall hold his office for a given term, such provision shall be construed to mean that the officer shall hold his office for such term and until his successor is elected and qualified. From the foregoing provisions of law it is evident that when appellee was elected township trustee, in April, 1890, he was elected for a term of four years and no more; that his term of office was to begin on the first Monday of August, 1890, and end on the day before the first Monday of August, 1894; and that, on and after said first Monday of August, 1894, there would have been a vacancy in said office, but that, under the constitutional provision above recited, the appellee was entitled to continue in the possession of said office until his successor should be elected and qualified. As the term for which the appellee had been elected would, under the constitutional provision, expire before the next general election following the election In November, 1894, it is clear, also, that such office should be filled by the vote of the people, it not being "otherwise provided by law." The conclusion seems inevitable that the relator, having been duly elected to fill the office, and having qualified and given bond, was entitled to it. Counsel for appellee do not controvert the proposition that the term for which appellee had been elected had expired, and that the relator was duly elected to fill such office; but they contend that, by force of the act of March 2, 1893, supra, taken in connection with the act of March 9, 1889, supra, the relator's term of four years was to begin on the first Monday of August, 1895, that be ing "the first Monday of August following such election." When we turn to the act of March 9, 1889, we find that "such election," as there referred to, was the election which took place "on the first Monday of April, 1882, and every second year there office on the first Monday of August after each April election. When the term was made four years, instead of two, by the act of March 11, 1889, supra, the beginning of the term remained, as before, the first Monday of August after the April election. The term, therefore, which began on the first Monday of August, 1890, ended on the day before the first Monday of August, 1894. The act of 1893 made no reference to the beginning or ending of the term, nor to its length. It left that just as it was. The sole purpose of the act of 1893, so far as relates to the office of township trustee, was to change the election from April to November. Certainly, a change in the date of an election cannot affect the term of the office to be filled. If the office becomes vacant by the change of the date of filling it, the constitution makes ample provision therefor, by continuing the old incumbent in office until his successor is elected and qualified. It will not be said that the legislature may do indirectly or by implication what it may not do directly and by an express act. Yet, if the posisition taken by counsel for appellee is tenable, the legislature, by simply postponing the time when an officer elect shall take his office, might, in effect, lengthen the time during which the incumbent could hold the office beyond the time of the general election, and beyond the end of the longest term permitted by the constitution. The claim is made that the power of the legislature to fix the time when an officer elect shall take his office cannot be abridged. This can be true only within the limits prescribed by the constitution. The legislature may, perhaps, extend the term of an incumbent of an elective office to any time not beyond the time of the next general election, and within the four-year limit. It may also, perhaps, for the better conduct of public business, prescribe a reasonable time after election at which an officer shall enter upon the duties of his office. But the legislature has no power, directly or indirectly, to fill an office elective by the people, unless this be done within some such narrow bounds as indicated. But if the legislature could, in effect, extend the term of the incumbent one year beyond the constitutional limit, and beyond the time of the next general erection, by merely postponing the time when his successor should take the office, why could not the legislature, in like manner, extend the incumbent's term two or more years by providing that his successor should not take the office until the expiration of any given number of years, and after the time of any given number of general elections? The only safe rule, within the requirements of the constitution, is, as we think, that all vacancies in elective offices shall be filled at the election first ensuing aft er the occurrence of the vacancy, and at which provision is made for election to such office. Otherwise, the door is thrown open |