State v. Philbrick.

mission has adopted the rules and regulations governing that body, a copy of which is made a part of this stipulation, and that said rules were in force on November 9, 1901; that on said date the said C. C. Philbrick, as director of public safety for the city of Columbus, issued a communication to Dr. W. D. Deuschle, as superintendent of health of said city, in which, after calling his attention to the condition of the sanitary and poor funds and to certain action taken by him in this connection, he, the said defendant, directed that this relator and others named in said communication be laid off, said order to take effect upon and after its date, and that it was signed by said defendant as director of public safety.

It is further agreed that thereafter, on November 11, 1901, said defendant directed a communication to the civil service commission for the city of Columbus, in which he notified said commission of his action in laying off said relator and others in said department and called the attention of said commission to. Sec. 2, rule 8 of the rules governing said body, that on November 9, 1901, the letter directed to said W. D. Deuschle by said defendant was read to relator; that during the time said Eli B. Barker and the above mentioned sanitary policemen were performing their duties as such they were under the direction and control as to the work they were to do of David Evans, who was also a member of the sanitary police force; that David T. Keating was secretary of the board of health, and as such secretary also issued certain instructions to said relator and other policemen as to their conduct and duties as sanitary policemen.

That immediately after said communication from the said C. C. Philbrick, as director aforesaid, the said David Evans and David T. Keating instructed and ordered the said Eli B. Barker and the other sanitary policemen to continue each day thereafter to report as sanitary policemen for duty and to retain their badges as such; that said instructions and orders were given without the knowledge or consent of the director of public safety; that said relator and other sanitary policemen have reported each day for duty since November 9, 1901, up to the present time, and that they and each of them have retained their badges as sanitary policemen during said time, but since said time they have performed no other duties as such officers.

That immediately after November 9, 1901, said relator and the other sanitary officers by their attorney, appeared before the civil service commissioners and inquired whether charges for misconduct in office had been filed against said relator, or other sanitary policemen, and were informed by said board that no charges of misconduct or charges of any kind were preferred against said relator or any of said policemen; and that that being the case there was nothing in respect to said relator or said policemen for the said board to order or determine.

Franklin Common Pleas.

That on November 9, 1901, there was an overdraft in the funds out of which said salaries of relator and other officers were formerly payable, but that other officers and employes of the city under the sanitary department who were not suspended or laid off were paid by overdraft by the city after said November 9, 1901.

That on December 31, the said defendant issued to said W. D. Deuschle, superintendent of health of said city, a communication in which he again laid off said sanitary officers for lack of funds and lack of work, the order to take effect at once; that the contents of said letter were not directly communicated to the board of civil service commission; that prior to November 9, and ever since said relator has been in the classified service, fixed by the civil service commission of said city under class A, official service, and of said class A, division G, sanitary service.

The pleadings in this case show in addition to the facts stated in the agreed statement that on or about May 13, 1899, the relator was duly appointed to the office of sanitary policeman, an office duly created by ordinance of the city council of the city of Columbus, and that the relator ever since said last named date and until November 9, 1901, has been a duly qualified and acting member of the sanitary police force of said city; that the salary fixed by ordinance for sanitary policemen was the sum of $720 per annum; that on or about January 20, 1902, said council passed an ordinance, No. 19,393, appropriating the sum of $510 from the sanitary funds of said city for the payment of the salaries of sanitary policemen, including relator, which ordinance was on January 21, 1902, approved by John M. Hinkle, mayor of said city; that a voucher was drawn for said salary in accordance with said ordinance, and that the same was presented to the defendant for his approval as director of public safety; but that he refused to approve the same; that on February 10, 1902, said council passed an ordinance No. 19,485, appropriating the sum of $300 from the sanitary funds of said city for the payment of salaries of sanitary policemen of said city, including this relator; that a voucher was drawn for the sum of $60, the relator's portion of said salary in accordance with said ordinance; that the same was presented to said defendant for his approval as director of public safety but that he refused to approve the same.

Said defendant by his answer pleads, as an excuse for refusing, rule 13, Sec. 2 of the rules of the civil service commission, which reads as follows:

Whenever, for lack of work, or lack of funds, or other necessary cause, it becomes necessary in any bureau to reduce the force within any employment in the official or skilled labor classification, the person last certified for such employment to such bureau for an eligible register, shall be laid off first," and says that said relator as a sanitary policeman is classified within the official labor classification of said commission, and

State v. Philbrick.

that said relator was laid off and suspended for the reason that the funds used for the payment of sanitary police officers were insufficient.

Further, that at the time the relator and other members of the sanitary force were laid off and suspended there were no funds in the city treasury by which the salaries of said officers could have been paid had they remained in the service of the city.

Further, that the civil service commission adopted a rule fixing the time within which an appeal must be made, and that the time so fixed was five days from the notice of discharge or suspension; that the said Barker, relator, and other members of said sanitary police did not appeal to the commission within said time and have not yet attempted to appeal to said commission.

Section 1545.-127 provides that: "No warrant for the payment of any claim shall be issued by the director of accounts until such claim shall have been approved by the head of the department for which the indebtedness was incurred, and every head of department and his sureties shall be liable to the city for all loss or damage sustained by it by reason of the negligent and corrupt approval of any claim against the city in his department."

As the defendant is the head of the department under which the relator claims to be employed, it is essential, before the director of accounts can issue his warrant for the amounts appropriated under ordinances No. 19,393 and 19,485, that said C. C. Philbrick, as director of public safety, approve the same. His refusal is based upon several grounds. The first is that the ordinance whereby the appropriations were made were each illegal and void because neither of them has a certificate of the director of accounts certifying that there was money in the treasury to the credit of the fund from which it was drawn. No certificate of such a character is attached to either of the copies of the ordinances attached to the petition.

Section 2702 Rev. Stat. provides that: "No contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the appropriation or expenditure of money be passed by the council or by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there be no auditor, the clerk thereof, shall first certify that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, which certificate shall be filed and immediately recorded;

and all contracts, agreements or other obligations, and all ordinances, resolutions and orders entered into or passed contrary to the provisions of this section shall be void; ***

By this it appears that all ordinances passed contrary to the provision of said section shall be void.

11 13 Dec.

Franklin Common Pleas.

Judge Gilmore states the object and effect of the enactment of this law in this language: "It will most certainly prevent expenditures in cases of the current revenues for the ordinary expenses of the city government." State v. Hoffman, 25 Ohio St. 328, 334.

In that case the action was begun in the name of the state of Ohio on relation of the superintendent of street improvements who had been appointed by the board of improvements of the city of Cincinnati and who was to be paid $24.00 per week for his services. He performed services for the week ending May 8, 1875, and the board issued a certificate in his favor authorizing the city auditor to issue a warrant on the city treasury for $24.00, which he refused to do on two grounds: "1. That at the time of the employment and service of the relator there was no money in the treasury set apart to meet the expenditures. 2. That he had not so certified to the city council." The Supreme Court held: "That, under the act of April 16, 1874, 71 O. L. 80, the city auditor properly refused to issue the warrant, and will not, therefore, be compelled to do so by a peremptory writ of mandamus notwithstanding money has since come into the treasury, and is now set apart to meet such expenditure."

The act referred to above corresponds to Sec. 2702 Rev. Stat. And the purpose of this statute is not limited to municipal contracts for public improvements, but includes expenses incurred in conducting the affairs of the city.

In Bond v. Madisonville, 1 Circ. Dec. 581 (2 R. 449), a contract was entered into between the council of the village and an attorney at law, by the terms of which the latter was to render his professional services to the village in certain prosecutions commenced before the mayor thereof; he to receive therefor from such village the reasonable value of his services. At the time the contract was made the clerk of the village did not first, or ever, certify that the money required for said contract was in the treasury of said village to the credit of the fund from which it was to be drawn. The court held that "the contract under the terms of Sec. 2702 Rev. Stat., is absolutely void, and no recovery can be had for the value of any services rendered under the same." As we have seen in the case of State v. Hoffman, supra, the relator was an employe of the city of Cincinnati.

Again, a contract made by a municipality with attorneys for legal services is void, unless the auditor or clerk first files or records a certificate as required by Sec, 2702 Rev. Stat. Findlay v. Pendleton, 62 Ohio St. 80 [56 N. E. Rep. 649].

In Elster v. Springfield, 49 Ohio St. 82 [30 N. E. Rep. 274], the court said that Sec. 2702 Rev. Stat. "is intended for the protection of taxpayers by checking municipal extravagance and the incurring of indebtedness."

State v. Philbrick.

Counsel for the relator contend that Sec. 2702 Rev. Stat. does not apply to the city of Columbus, that said section was repealed by implication by Sec. 1545-207 Rev. Stat., which reads: "That all acts and parts of acts inconsistent or in conflict with the provisions of this act be and the same are hereby repealed in so far as they may apply to cities of the first grade of the second class." But such construction can not be given this section unless it clearly appears that such was the legislative intent.

In Commissioners v. Board of Public Works, 39 Ohio St. 628, 632, Judge Owen said: "Repeals by implication are not favored. So, particular and positive provisions of a prior act are not affected by a subsequent statute treating a subject in general terms and not expressly contradicting the provisions of the prior act unless such intention is clear."

Endlich on Interpretation of Statutes, Sec. 223, says: "A later affirmative law does not abrogate an earlier one by mere implication."

There is nothing in Sec. 1545-207 Rev. Stat. that warrants the conclusion that it repeals Sec. 2702 Rev. Stat. That the restraining effect of this section is needed by every municipality of our state there can be no doubt. And the Supreme Court has never recognized any qualification in its application to all cities and villages of the state.

In Lancaster v. Miller, 58 Ohio St. 558, 574 [51 N. E. Rep. 52], Judge Bradley says: "This section prohibits a municipality from entering into any contract. * ** involving the expenditure of money unless the auditor or clerk, as the case may be, shall first certify that the money required for the contract is in the treasury." He does not say "certain municipalities" or refer to some particular municipality, but speaks as of all municipalities. It is said that the section does not apply to Columbus because we have no city auditor. Prior to the enactment of the charter law the city had an officer known as the city auditor, and by the enactment of Sec. 1545-125 Rev. Stat. et seq. the duties assigned to the director of accounts corresponds to those previously prescribed for the city auditor.

See also Secs. 1545-133 and 1545-200 Rev. Stat.

But if the office of city auditor has been abolished without the assigning of his duties to another officer we still have a city clerk who is authorized to issue such certificate if there is no auditor.

Another defense alleged by defendant is that the ordinance is illegal because no services were rendered by the relator. In other words that the city council had no authority to appropriate money to be paid to any individual without some consideration therefor. The agreed statement of facts in this case shows that after relator was laid off by defendant he reported for duty and that continuously since November 9, 1901, to the time this action was begun has reported each day for duty, and has retained his badge as a sanitary policeman, but that "since said time he has performed no other duties as such officer," which means that since November 9, 1901, he has performed no duty as such sanitary policemans