State v. Trueblood. sary, and so entered of record, to employ any person to render any service as contemplated in this section, as a public necessity, the contract for such employment shall be spread of record in said court; and, for such services rendered, the claimant shall file his account in said court ten days before the beginning of the term, and any taxpayer shall have the right to contest the claim." This section of the statute makes it a public offense for the board of county commissioners, acting as such board, unless in a case of indispensable public necessity, which fact is to be found and entered of record as part of its orders, to make any allowance not specifically required by law to either of certain officers named therein. The general rule is recognized that material matters in either civil or criminal pleadings must be directly alleged, and not stated by way of recital. Jackson School Tp. v. Farlow, 75 Ind. 118; Shafer v. Bear, etc., Co., 4 Cal. 294; Hall v. Williams, 13 Minn. 260; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578. It will be observed from the reading of the indictment that the allegation as to the necessity for the allowance and as to its specific requirements by law are by recital, and not direct averment. The words "illegal" and "unwarranted" are conclusions of law, and do not describe the offense attempted to be charged. This count does not charge that the allowance was made out of the moneys of the county of Lawrence. The date at which the services were claimed to have been rendered is not stated. Its averments are not sufficient to bar another prosecution for the same offense. It does not appear, except by inference, that the party named as auditor, at the time the claim was filed and allowed, was auditor at the time the services were rendered, for which compensation was claimed. This date is material, for under the law in force until March 11, 1895, the board of county. commissioners were authorized to employ and pay a clerk to record the proceedings of the board in a book provided for State v. Trueblood. such purpose. $7831 Burns 1894, §5746 Horner 1897. It is a principle of criminal pleading that an indictment upon a statute must state the facts which constitute the definition of the offense in the act so as to bring the defendant within it. The indictment before us may be true and the defendant not guilty of the offense described in the statute. The court did not err in sustaining the motion to quash. Judgment affirmed. Wiley, J., dissents. DISSENTING OPINION. WILEY, J.-I concur with my associates in holding that the second count of the indictment is bad, but am not in accord either with the reasoning or the conclusion reached in the prevailing opinion holding that the court correctly sustained the motion to quash as to the first count. In determining the sufficiency of the first count there are two sections of the statute which may properly be considered, viz., §§7853, 6548 Burns 1894. The former section is quoted in the prevailing opinion, and need not here be repeated. The latter section is as follows: "It shall be unlawful for any board of commissioners to allow any county, township or other public officer, any sum of money out of a county treasury, except when the statutes confer the clear and unequivocal authority to do so." Section 7853, supra, prohibits the board of commissioners from making any allowance to any county auditor, etc., which such allowance is not specifically required by law, unless in case of indispensable public necessity to be found and entered of record as a part of its order. This section also provides a penalty for the violation of its provisions. Section 6548, supra, makes it unlawful for a board of commissioners to allow any county, township, or other public officer any sum of money out of the county treasury except when the statutes confer the "clear and unequivocal authority to do so." This section makes such allowance of money unlawful, but does not prescribe a penalty. State v. Trueblood. The first question to be determined is, was the claim of the county auditor, which was filed by him and allowed by the board, and which is described in the first count of the indictment, an unlawful or unwarranted claim? If the auditor was not entitled to the compensation specified in the claim filed, and as allowed, then it was an illegal claim against the county; there was no liability on the part of the county, and its allowance by the board was unlawful, within the meaning of the statute. I am informed by the indictment that the basis of the claim of the auditor was for extra services claimed to have been rendered by him on account of gravel roads, as clerk of the board for thirty-two months, at $25 per month. By the act of 1891, the compensation of county officers in this State was graded and fixed. It is plain that it was the intention of the legislature by said act to regulate, adjust, and fix such compensation, to the end that constructive fees should neither be charged nor paid. The law, as then passed, became a public necessity to correct well known abuses that had grown up under our former laws, and that the public might be protected against unjust and unwarranted claims of public officers. By the act of 1891, the salary of the auditor of Lawrence county was fixed at $2,400. Acts 1891, p. 433. By the amended act of 1895, the salary of the auditor of said county was fixed at $2,300 per annum. $7403 Horner 1897. $7356 Horner 1897, being a part of the amended fee and salary law of 1895, provides that "The county officers named herein shall be entitled to receive for their services the compensation specified in this act subject to the conditions herein prescribed, and they shall receive no other compensation whatever." The italicization is my own. The act of 1891, supra, contained the same provision. Acts 1891, pp. 427, 428. Section 7450 Horner 4897, provides for the taxing of certain fees by county auditors in behalf of their respective counties, the fees and amounts to be designated "Auditor's costs," but it is fur * * * * State v. Trueblood. ther provided that such fees so taxed "shall in no sense belong to or be the property of the auditor, but shall belong to and be the property of the county." Among the many duties of a county auditor prescribed by the legislature is that "by virtue of his office he shall be clerk of the board of county commissioners of his county, and shall keep an accurate record of all the corporate proceedings of such board." $5895 Horner 1897. By $5740 Horner 1897, it is made the duty of the auditor to attend the meetings of the board of commissioners and to keep a record of their proceedings. If the legislature has provided any extra or additional compensation for a county auditor for performing the duty prescribed in the section of the statuate just cited, I am unable to find it, and counsel have not pointed it out in their brief. I have thus referred to all the statutes that have any bearing upon the question now under consideration, and it seems manifest that in none of them is any provision made authorizing the payment, by a board of commissioners, of a claim against a county of the character of that described in the indictment; while on the contrary there appears to have been a studied effort on the part of the legislature in these several enactments to guard against such claims and the payment thereof. While it is unnecessary to refer by sections to the law, it is sufficient to say that the legislature has clothed the several boards of commissioners in this State with power and jurisdiction, under certain conditions and within fixed limitations, to have constructed under their orders free gravel roads. This authority is conferred upon them in the same manner as their authority to grant liquor licenses, to order, on petition, the construction of public ditches, to lay out, vacate, and change public highways, to build court-houses, etc., is conferred. The board of county commissioners is a statutory body, and all its powers, its authority and its jurisdiction are conferred upon it by the legislature, whose creature it is. When a board of county commissioners is exercising its State v. Trueblood. jurisdiction and powers relating to the construction, etc., of gravel roads, as delegated to it by the legislature, it is simply acting as a board of county commissioners, and in no other capacity. When the respective commissioners are sitting as a board, transacting the public business entrusted 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 |