*1 recognized tion of use lands this State and the half- acre public quoted was dedicated for a and charitable use. We Campbell Kansas, v. The 102 Mo. 13 W. S. case involving public graveyard land use for a dedicated where to pious purposes we ruled land be dedicated and charitable public ways, as well as for commons and other in the easements ways. nature of We must bear in mind that at that time the modern cemetery was, degree, was unknown here. The dedicator a do- graveyard” nator. In the ease the above words “donated for a were plat. marked on Where donor dedicated public, lands for they pious accepted uses and purposes charitable for such complete the dedication interest. [Rutherford graveyard We found that Taylor, this had been used being a burial and there no abandonment, paramount. still interest of the do not We find such applicable here. The ruling rehearing to be motion for is overruled. Nodaway v. A. P. Appellant. (2d)W. Kidder, 857.

Division One, June 1939. *2 W.eightman ap- é Livengood Wright Ford, Ellis G. Cook & pellant. *3 Prosecuting Attorney, respondent. Yogi,

G. G. *4 by Nodaway DALTON, County is an action (respondent C. This by herein) had and received defendant plaintiff’s for use.' judgment appealed. for the defendant From has charged years that for the petition and defendant (hereinafter appellant) called duly A. P. Kidder was the elected, acting Presiding Judge of the qualified Nodaway and Court of during County; year that each month of said two period appel- presented county to the filed and court his lant written claims and salary for and as county a member of demands said in tbe sum of equalization of as.a member of tbe board court and $516.55, all claims were of $2560, mileage for wbicb and claims County and, the Nodaway paid of funds and out of allowed legal- appellant was thereof, appellant; that amount received total only and $465 and ly receive as entitled - allowance, the excess amount of mileage; and that the $6 and. wrongful, sought, illegal, and recovery for appellant, general -was denial. authority law. The answer of without testimony appointed, referee was plaintiff a application of On by, report Exceptions appellant said heard, report filed. and plaintiff. overruled, judgment entered were appellant it that hearing the referee was admitted In the before elected, dxdy the during period 1933 and was, entire of the county Judge of court of said Presiding the acting qualified of than Nodaway County population less county; that contained during period appellant the filed with inhabitants; that said 75,000 twenty-nine statements, county the court some which were the clerk of county of appellant.; allowed favor duly audited and statements; payment of said that that were drawn warrants by appellant. proceeds received paid, were and the warrants county charges by appellant against statements cover said day, together month) per at rate of with (days per $5 time mileage per The said the rate of five cents mile. statements certain at only county appellant while in attendance at not the-time-of cover meetings equalization ap- at court, and board board county farm, peals spent also at the and on to in- trips but roads, time asylum bridges, trips Joseph, to the at St. spect culverts or county, trips Joseph hogs, trips to various towns to St. with kinds -other Joseph purchase supplies various trips to' St. county charges. It terms' of held was admitted that four court were year; appellant seven each that resided 'and one-half miles from holding county- proof court. The .further that showed court, equalization appeals board of of. and board session a .were in ninety-three days during period. total cross-examina-, hearing -referee, appellant, In the before in the- witnesses, offered of one to show all of the tion spent statements, of time att time covered while exclusive equalization, ending court, appeals, board of board of Nodaway spent employee County, as an Judge; working employee agreement a.n per court that-he be .with allowed mileage attending day business; while that all funds paid appellant, except court, equal-, attendance board of merely to him appeals, employee as an ization and board *5 county hiring highway engineer- the from to save of the and offering plaintiff's Appellant was denied. to evi The demurred e . r and stood' on the demurr dence the amply supported

The referee found that evidence allegations Nodaway grand by of the petition; that the total lawfully County en- appellant $3019.90; that appellant was that only $471; and receive, mileage, as compensation titled and of his during year “in excess appellant period received said two plain- County Judge” legal compensation a total of $2548.90 as judg- report approved tiff was entitled recover. by duly recovery plaintiff. ment entered thereon for of said excess assigned sustaining report. Ap- Error is on the court’s referee’s allega- the support (Í) that the fails to pellant contends evidence referee, petition findings and that (2) tion of the the of the rejecting appellant in evidence error was committed offered ‘‘ county employee, the as a and not that received show County Judge of the Court.” findings made

This is an action at law and the of fact court, referee, occupy approved when and confirmed the trial the jury, and will not appeal as the verdict of a status same & Cloak Suit supported if substantial evidence. [Kline disturbed 494, 96, 100; Hunt v. Leh Morris, 240 S. W. Mo. Co. (Mo. App.), 55.] rack had the' or not court Appellant contends whethér appellant judge, than right employ in some other capacity, contract, illegal is not in- employed whether volved funds, here, petition alleged that the since claims Judge County sought to be recovered were received “as Appellant says proof support plead- failed to Court.” funds, findings referee, the excess ings and failed to show or the County Judge Court.” received “as capacities in act different Appellant contends two capacity time and that received in one will same in Appellant received the other. over not be treated employer capacities; that the two looks the fact existence incompatible peremptorily in the same individual and is employee, by law. prohibited record, given juris courts are courts of created and county business, to audit and to transact all settle all-

diction county. Section Constitution [Article demands Ann., (Mo. Statutes Stat. Missouri, Revised see.. Section .1929 providing settling auditing above statute 2078, p. 2558.] only applied lawful demands and does against, the claims arising court to audit and claims settle authorize not Minter, Co. v. Securities contracts. [Hillside on void1 judicially 'A court does not act 254 S..Y. presented against county, approving claims auditing thereof, and- its issued action is auditing warrants judgment of a is final. that a [Jackson the sense final in

801 County Fayman, 423, 852; v. 44 State ex rel. (2d) 329 Mo. S. W. Diemer, 336, 351, 517, West v. 255 164 S. W. fact 521.] Mo. that said statements, Judge Kidder, were audited presented county court, and allowed and that warrants were ordered statements, binding plain be issued in said not was tiff. judge county court, county

.The compensation of a of the in a having day 75,000 per day less than inhabitants is fixed at for each $5 necessarily engaged holding court, per plus five cents mile for each necessarily going returning mile traveled in to and from the holding county only court, mileage charged and such be shall for regular once each 2092, (Mo. Ann., term. R. 1929 Stat. [Sec. S. 2092, p. 2664), sec. pp. as amended Laws of Mo. In 190-191.] county judge day a per addition court is for allowed each day he as a equalization sits member of board of and board of appeals. 1929 (Mo. Ann., 9818, p. 7915).] R. Stat. sec. [Sec. S. general rule that the rendition services is gratuitous, is deemed compensation officer to be unless a therefor is by' provided provides compensation statute. If the statute in a par manner, mode or then ticular the officer is confined that man to. compensation any is other ner and entitled to no or further or to same. securing statutes, strictly mode of Such too must different be Gordon, as the officer. ex v. [State construed rel. Evans 245 12, 28, 638; King Dist., 149 W. v. Mo. S. Riverland Levee 218 App. 490, 493, 195, 196; Wedeking Mo. 279 W. ex rel. State v. McCracken, App. 60 Mo. 656.] claiming

It well compensation established that officer performed point.out for official duties must authorizing the statute payment. Hackmann, rel. such ex Buder v. [State 305 Mo. Adams, W. 532, 534; 265 S. ex State rel. Linn v.

1, 7, County, v. Chariton Mo. Williams 645.] performed appellant,

The duties for which the ad mileage, paid, fee or ditional was with were reference to pertaining relating matters to and to his presiding official duties as judge said services within scope The, official duties. engaged work was under, directly supervision policy court Public pubjic that a requires compensation officer denied additional official performing duties. .city attorney, employment has been as It held which a sal- connection, paid,

ary includes services rendered in special with a matter, city attorney tax and that covers such ser- city vice, collector ’not city with .contract at- torney for additional -for in.- services such matters. Kirkwood, App. Mo. 142 [Edwards 173, 129 Pac. Huffaker, Idaho, In the case of Robinson v. acting’ for defendant, a. commissioner who was such, not en drawing- declared such, fees as roads and inspecting pay for services rendered additional titled to accepts com one an office with bridges. The court held that where legal compensation, by law, has claim extra fixed no pensation pay him an extra by the board fee promise *7 degree exercised a of though rendered services binding, he had required. legally been than have diligence greater could N. Lampkin (Ind.), 112 E. v. Indianapolis of In the case of compensa- extra city a clerk could not be 833, it held since work proceedings, of such an index council preparing tion for duty. the office and was official incident to anwas 2089, Ann., (Mo. 1929 Stat. sec. Eevised Statutes Section in the 2663) judge any “No of court State provides, p. indirectly party any to to which shall, directly become a contract or any bridge commissioner, or party, is to act as road a or succeeding provides . . The section special. general or either of jail for the violation said imprisonment fine penalty a section. county court, alleged agreement appellant and the between

The member, express terms appellant was a was void of which of statute. 117 District, 219 Mo. S. W. of Seaman v. Levee In the case district, of a levee one of the commissioners plaintiff was board, the board of commissioners of the dis- secretary of the engineering to do the In made a contract with work. trict upon unpaid him, issued suit recover warrants it was held since provided not recover his services a statute that he could any should be interested contract for con- that no commissioner drainage in the district. The fact that the work struction work reasonably accepted price worth the contract and had been done and satisfactory plaintiff. not aid did Boyd Arthur, Ky. 932, Ky. 118 In case v. of Law of Rep. 906, ap- the fiscal court had supervise of its members the construction and pointed each main- fixed per day. roads in district and an allowance of tenance being from prohibited member of court interested A statute county. with the The court said: a contract “The members representatives charged are the with the fiscal court . . duty its interests. . There protecting principle is no better occupy that a will not be allowed to po- than trustee a dual settled sition, charged protection that, with the where he of his cestui in a trust, position personal he cannot himself que where his may antagonistic to the interests of que the cestui interests trust. this, it is breach of his trust. The If he statutes does we have referred, they to have the same end in when view forbid the members being any work, fiscal court interested contract or and in providing they supervisor appoint one whole over supervision and exercise him.” “The fiscal held: authority any court has no to allow its members other than that fixed law.” alleged against

Appellant’s contract was also void as regardless policy statute. A member of an board official can body he is contract with a member. The election by a of its Board of Commissioners of one own to the members office agreement pay of clerk and him a was held void as public policy. Beach Mintz, Carolina v. 212 N. [Town C. 194 S. E. 46 C. J. sec. 308.]

Plaintiff sued had and received use. This action is a favorite law. [Clifford Banking Co., Donovan 262, 288, Co. v. Commission person action lies one 535.] whenever has received money belonging equity to another good which in conscience he ought pay Casualty to the owner. [Continental Co. Pleitsch (Mo. W. App.), (2d) 956, When a wrong- official *8 fully funds, public although paid receives to him honest law, mistake of he must restore such funds. Township v. [Lamar Lamar, 171, 187, of 261 Mo. 169 S. W. 12; State rel. ex Barker v. Scott, 90; 270 192 W. Mo. S. State ex rel. Buder v. Hackmann, 532, 536; 305 Mo. 265 S. W. ex rel. Jarvis v. State Dearing (Mo. App.), 477; Atchison DeArmond, v. 60 Mo. 19.] Corpus Juris, 509, in 15 rule stated section as follows: “Money paid by to a officer to which he is not entitled law

may back, demand, recovered without previous in an action for money by county.” had and received -instituted the. general rule is stated as any also follows: “As a rule com-

pensation paid a public governmental the official state or other body by law, not authorized or in excess the author- law, ized proper be recovered the governmental body. . . .” [46 C. J. sec. 285.] In at bar ease was sued as an and the individual any

not as an or in .representative capacity.- official Plaintiff es tablished that appellant question was at the time in presiding judge county court; that billed court for the. services; he and that obtained the in funds far excess of salary his lawful as a and fees' official. It was established that he was a member the court approved which audited his state and issued, ments. It was admitted that paid, warrants and the public by. funds received defendant. This-was sufficient to make prima case was facie substantial sup evidence to port allegations petition the findings the the of the Referee. un- public official hands of a are into tbe funds traced public When case, it is es- by the this shown record der the circumstances for an amount to him funds, paid been that such have tablished officer, and that compensation as such of his lawful excess capacity incom- any other was funds excess receipt the to make is sufficient evidence position, his the official patible with to recover was entitled plaintiff:. Plaintiff case for prima facie right retaining legal equitable or could show unless defendant . Sidebottom, App. 215 Mo. v. excess [Sidebottom the App. 164, Sanitary Reed, Mo. v. Co. Co., Drug App. In the case of Richardson W. 315.] “ has in his one man hands court said: ‘Whenever 515, 533, the over,*he is ought pay liable this another, money of which he

the party the who has although or heard of action, has never seen he money, if he the he proved that has right. When the fact is retaining ground it, legal equitable has that show he cannot . . As privity promise. the law creates testimony,' appeared it the Insurance close case stood money (plaintiff) prima to which he facie Company had right keep had to entitled, the defendant. Whatever defendant action, defense, which, in this form matter it, right was heard entirely to whether under which it available legal equitable.” or that having established defendant received funds Plaintiff salary in excess of his the burden was defendant to which were right to retain excess funds over his show attempted do, law. This he as we have seen. established assigns permit error on Referee’s refusal to Appellant understanding had an with the contract coun him show member, employed by he be ty court, of he himself was day mileage and per at a in connection looking directly super with after business which was under the *9 being Appellant proof denied this vision court. offer of during plaintiff’s witnesses, of one of the cross-examination stood at the case'. The prop demurrer close offer was Any erly such contract the county ap denied. between court and against policy express void as pellant was terms of Mo., R. supra; the statute. C. J. sec. [Sec. 1038, sec. C. J. assignments We therefore rule the error appellant.' points argument, Under authorities and under but not assignments error, to under the referred head of appellant con ex payments charged tends that the action is delicto and is based on illégally, wrongfully authority have been law, made without that therefore the action was not referable to a Referee. Appel illegally charges right denied jury. lant trial Bill of Exceptions objection exception Tbe shows no to tbe order Morris, appointing & Co. v. Referee. Cloak Suit [Kline supra.] Term, Tbe tbe 1936. re- order was October Tbe made port filed, judgment at tbe confirmed and entered Term, jury made trial. mo- April 1937. No demand was for a No judgment appears in arrest of was filed. Tbe matter first tion exceptions report tbe Referee’s and in tbe mo- tbe record tbe is not us for for a new trial. matter before review. tion Tbe is contention overruled. Hyde GG., Bradley, is affirmed. concur. judgment Tbe C., Dalton, foregoing opinion adopted .PER CURIAM: —Tbe J., concur, except Hays, judges All P. opinion tbe of tbe court. tbe absent. Politte, Kay, M. Appellant, v. Ida M. Widow Thomas

Louis Dorsey Raymond Politte; Politte, Politte, Howard Thomas Ruby Clay Politte, Politte, Politte, Martha Politte, James Politte, William Politte, Politte, Lindell Politte, C. Fern Kamp. Vaughn Politte, L. and Harold Paul William (2d) 863. One, Division June 1939.