Epitomized Opinion
Ballard was city solicitor of Cincinnati in 1908-9. He appointed Thomas prosecuting attorney of the police court and Thomas served in .that capacity, 1908-9. County commissioners appropriated $800 per year, under 1536-633 GC., to pay prosecuting attorney of Cincinnati police court to render legal services for the county. Thomas drew $200 in 1908; thereafter Ballard demanded the money and the commissioners paid him $1400, as balance owed for (908-9. Ballard did not turn over any of the $1400 ¶ Thomas. In 1916 Thomas sued commissioners for 1400 as balance due him for services rendered in 1908-9. Supreme Court in 88 OS. 489 held Thomas was entitled to this money and he was paid it. This action is to recover the money paid to Ballard, who contended: (1) That money was paid: under judicial construction of Sec. 1536-663, in 10 CC. NS. 507, and «change in decision has same effect on pre-existing contracts as repeal or amendment of statute, 101 US. 676. (2) That money paid under a mistake of law cannot be recovered. The Court of Appeals in affirming the judgment ordering- Ballard to repay this money held:
1.There was no contract between Ballard and the county. This money was appropriated to compensate the person that represented the county in its litigations. No consideration moved from Ballard to the county as a basis for the contract. Ballard was an officer of the city and had a contract with it and not the county.
2.The prosecuting attorney was authorized to maintain an action to recover the money drawn by Ballard. Statute changed 68 .OS. 362.