Stark Common Pleas.

The testimony shows that at all times since the fixing of the salary of the health officer, there has been in the general fund of the city more than enough money, unappropriated for any other purpose, to pay his salary. In December last there was about $600, and there are several thousand dollars in that fund now, notwithstanding the tact that it did not receive its proportion of the Dow tax fund. It further shows that on June 3, 1901, the council appropriated $450 to the uses and purposes of the board of health fund, which was before the board of health certified this expense for salary, for which this action is brought; and that this money remains in the board of health fund, unappropriated to any other purpose.

These facts may not be important for the determination of the main contention in this case, as to whether or not the board of health could employ a health officer and fix his salary without having the clerk first certify that there was money in the treasury to the credit of the proper tund, and unappropriated to any other purpose; but it becomes important in the view I take of this case. For, if there was no money there for the purpose of paying these obligations, the warrant should not issue until after the council had raised money by taxation, as provided by Sec. 2140 Rev. Stat., as it might be compelled to do by mandamus, sufficient to pay these expenses. State v. Franklin Co. (Comrs.), 35 Ohio St. 458.

Notwithstanding the sections of the statute cited by counsel for the municipality, Secs. 2698, 2691, 2689a, 2683 Rev. Stat., to the effect that the council should not contract any obligation exceeding the amount of taxes received for that year for any purpose specified in the levy, and that they shall apportion the fund to the several departments as they may deem necessary, and not transfer funds from one account to another, they must not be allowed by the exercise of what they may deem at the time to be a reasonable discretion, to so preclude themselves that they cannot meet just and lawful obligations, where they might have legally provided for them. If money is on hand in a fund from which they might legally and properly pay an obligation, it will be payable from that fund without transfer, notwithstanding the fact that they may have intended to pay it from another fund. To hold otherwise would be in effect to say, "I put money in this pocket that I thought would be sufficient to pay you; and I should not therefore go down into my other pocket to pay you the excess."

The salary of the health officer, if an obligation at all, is payable properly out of the board of health fund, if sufficient, out of the salary fund if provided for, and if not, out of the general expense fund as other indefinite expenses which are constantly accruing, are payable; such as the city engineer and street commissioner's salary, which seem to be regularly paid in Massillon out of the general fund.

State v. Massillon.

Finding, as I do, that there has been at all times money in the treasury of the city sufficient to meet this expense, in the fund from which it could lawfully have been paid, which had not been appropriated to any other use, the only other question is as to whether the failure to have the clerk so certify to that fact will defeat the action.

The corporation's counsel cites and relies upon several decisions of the lower courts in this state, mostly Hamilton county cases, which were decided on the authority of the decisions of the circuit court of that circuit. Bond v. Madisonville (Vil.), 1 Circ. Dec. 581 (2 R. 449); State v. Rust, 2 Circ. Dec. 577 (4 R. 331). They were injunction cases, brought before the contracts were executed, to enjoin street improvements and lighting contracts.

The case of Ampt v. Cincinnati, 2 Dec. 504 (2 N. P. 332), to which he especially directs the court's attention, as a conclusive authority, was decided by Judge Wilson of the Hamilton county common pleas court, and was to enjoin a ten year lighting contract, and ought to have no application here, because there is no analogy between the cases-if for no other reason.

Judge Pugh, in the case criticised by the city solicitor, 23 W. L. B. 298, reviews these cases and holds differently, because the circuit courts of other circuits have put an entirely different construction upon the act; and I find on examination that the later decisions in the circuit court, some of which have been affirmed by the Supreme Court, without report, sustain Judge Pugh, rather than the Cincinnati cases.

State v. Hoffman, 25 Ohio St. 328, is also relied upon by the city as an authority in its favor; but this authority cannot be considered conclusive, or important in the case at bar. There, the fund was raised by special act of the legislature for a specific purpose, viz: the paying of the debts of the city which had already been contracted. The act itself provided how the money should be spent. The board of improvements employed a superintendent of street improvements, at $24 per week. A peremptory writ of mandamus to compel payment was refused, because the employment was unwarranted, and there was no money in the treasury unappropriated at the time the contract was made and services performed. This case was not decided under Sec. 2702, but under a special statute, which in positive terms prohibited such employment and expenditure.

Judge Seney, in Lima Gas Co. v. Lima, 2 Circ. Dec. 396, 400 (4 R. 22,28), says:

"We are referred to Sec. 2702 Rev. Stat. in opposition to this holding. Sufficient it is to say, that we do not think this section has any application so far as contracts affecting the expense of running a city are concerned.”

Stark Common Pleas.

In the case of Findlay (City) v. Parker, 9 Circ. Dec. 710, 714 (17 R. 294, 300), the question was as to the employment of a general manager of a natural gas plant owned by the city, and the court say:

"The expenses thus incurred are but the current expenses of operation, and to require certificates of the clerk as a condition to authorize these current expenses and to anticipate each operation thereof, would render it almost impossible to operate an institution of the character at bar. So we do not think that the certificate of the clerk is necessary to make lawful an outlay of the kind arising under defendant's employment."

This case has been affirmed by our Supreme Court, without report, in Parker v. Findlay, 63 Ohio St. 565.

Turner v. Toledo, 8 Circ. Dec. 196 (15 R. 627), was an action for damages and compensation for nursing and care of a smallpox patient; and the court held that while the city was not liable for damages, it was liable for the nursing, notwithstanding the fact that no certificate of the clerk had been filed, and the matter had never come before the council.

Wilson v. Cincinnati, 10 Re. 123 (19 Bull. 10), was raised under the section of the statute requiring the city of Cincinnati to provide an armory for the militia. They made a lease, which was attacked on the claim that the certificate required by Sec. 2702 had not been made; but the court held that the provisions of the armory law being mandatory, they were required to provide the armory, and the lease was upheld. notwithstanding the fact that Sec. 2702 was not complied with. This case was decided at special term, and afterwards at general term by the superior court of Cincinnati, and the Supreme Court afterwards refused to grant leave to file a petition in error.

Tyler v. Columbus, 3 Circ. Dec. 427 (6 R. 224, 226), holds that proceedings for condemnation and appropriation of property are not within the spirit or purpose of Sec. 2702, and that the impossibility of carrying out the letter of the section in regard to them, which must have been known to the legislature, makes it clear that this section cannot apply to such proceedings. Put-in-Bay (Vil.) v. Webb, 7 Circ. Dec. 478 (18 R. 780), is to the same eflect.

Cincinnati v. Honningfort, 1 Dec. 563 (32 Bull. 32), the superior court of Cincinnati holds that this section does not apply to the city's share of street improvements. On page 35 the court say: "The money for the contract was in process of being levied, and collected thereafter and that it would make the law under which the council was acting impossible of enforcement to require the certificate, and that no such requirement as to the certificate * * * was within the contemplation

of the law."

Section 2115 Rev. Stat. provides for the appointment of the health officer to serve at the pleasure of the board, and says that "the board

State v. Massillon.

shall have exclusive control of their appointees, and define their duties and fix their salaries."

Section 2140 provides that:

"When the expenses are incurred by the board of health under the provisions of this chapter, it shall be the duty of the council, upon application and certificate of the board of health to pass the necessary appropriation ordinances to pay the expenses so incurred and certified, and the council is hereby empowered to levy subject to the restrictions contained in the ninth division of this title, and set apart the necessary amount to carry into effect the provisions of this chapter."

Now it is contended that to constitute an exception to Sec. 2702 Rev. Stat. the exception must appear in the law. But, clearly, this is not the case, as our courts have, in the several instances cited, and many others which I have not taken time to cite, read an exception into the statute. Many of these instances are where the statute in conflict is not mandatory, as in this case; and, therefore, less reason for making the exception. The provisions of Sec. 2140 Rev. Stat. are, therefore, to be read as an exception to Sec. 2702 Rev. Stat.

In the case of Cincinnati v. Holmes, 56 Ohio St. 104, 114, the court holds that:

It is a rule constantly observed in the construction of statutes that where the general provisions of a statute conflict with the more specific provisions of another, or are incompatible with its provisions, the latter is to be read as an exception to the former. See also State v. McGregor, 44 Ohio St. 628, 631.

In State v. Newton, 26 Ohio St. 200, 206, the court says:

"In Fosdick v. Perrysburgh, it was laid down as an established rule in the construction of statutes, that a subsequent statute treating a subject in general terms, and not expressly contradicting the provisions of the prior act, shall not be considered as intending to affect more particular and positive provisions of the prior act, unless it be absolutely necessary to do so in order to give its words any meaning." See also State v. Perrysburg (Mayor, Rec. & Tr.), 14 Ohio St. 472; Knox Co. (Comrs.) v. McComb, 19 Ohio St. 320, 336, 345.

The city council, as was held by Judge Stone in the Cleveland case to which I referred in passing upon the demurrer to the petition in this case, had no power to review or pass upon the reasonableness of the expenses incurred by the board of health. Their duties are mandatory. They must provide for the payment, and pay such expenses as are certified to them for payment. As is said in Felton v. Fuller, 29 N. H. 121, 122, the law does not require the performance of a duty, and at the same time withhold the means necessary for its payment.

The prayer of the petition will be granted and the alternative writ will be made peremptory.

Montgomery Common Pleas.

ACCIDENT INSURANCE.

[Montgomery Common Pleas, 1902.]

CARRIE P. TRONE V. THE GENERAL ACCIDENT ASSURANCE CORPO

RATION, ETC., ET AL.

1. Death Effected Through “External, Violent and Accidental Means.” A death which ensues from the unconscious inhalation of poisonous gas is effected through "external, violent and accidental means within the meaning of an accident insurance policy insuring a person against bodily injuries or death effected through external, violent and accidental means.

2. RULES OF EVIDENCE Provided for BY POLICY CONTRARY TO FUNDAMENTAL PRINCIPLES NOT PERMITTED.

Although the relations between the insurer and insured are contractual, the courts will not permit a cident insurance companies to establish rules of evidence which are wholly at war with the fundamental principles of evidence.

3. RULE APPLIED-Proof of Death.

A condition in an accident insurance policy that the policy" shall not extend to cover injuries, whether fatal or disabling, of which there is no visible mark upon the body," presents a question of evidence and not of law, and a provision of this character will not be enforced where the tendency would be to stifle the course of justice. Hence, in an action upon an accident insurance policy, where the death of the insured was the effect of the involuntary inhalation of a poisonous gas, all the facts and circumstances attending the death, including the condition of the body when found, must be submitted to the jury, and it is for them to determine whether or not the death was accidental within the general intent thereof, without giving any special weight to the presence or absence of visible, external marks upon the body.

4. EXCEPTION TO DEATH FROM ASPHYXIATION FROM GAS IN ANY FORM, ETC., VALID.

Where an accident insurance policy excepts from among the risks assumed by it bodily injury or death resulting from, "gas in any form or manner," such exception applies to any death caused by gas, however it may be introduced into the human system, whether by the voluntary and intelligent act of the insured, or by his involuntary and unconscious act. Accordingly, no recovery can be had upon a policy containing such exception where the death of the insured was caused by the inhalation, during sleep, of gas escaping from a broken pipe of a natural gas stove.

Gottschall, Crawford & Limbert, for plaintiff, cited:

What constitutes a violent cause of death.

Paul v. Insurance Co.

20 N. E. Rep. 347 [112 N. Y. 472; 3 L. R. A. 443; 8 Am. St. Rep. 758]; Pickett v. Insurance Co., 22 Atl. Rep. 871 [144 Pa. St. 79, 92; 13 L. R. A. 661; 27 Am. St. Rep. 618].

Evidence. Richards Insurance, par. 193; Utter v. Insurance Co., 32 N. W. Rep. 812 [65 Mich. 545; 8 Am. St. Rep. 913]; Richards v Insurance Co., 26 Pac. Rep. 762 [89 Cal. 170; 23 Am. St. Rep. 455]; Coburn v. Insurance Co., 13 N. E. Rep. 604 [145 Mass. 226]; Menneiley v. Assurance Co., 43 N. E. Rep. 54 [148 N. Y. 596, 602; 31 L. R. A. 686; 51 Am. St. Rep. 716].

Rules of construction for accident policies. May Insurance (2 ed.), Sec. 175; Niagara F. Ins. Co. v. Scammon, 100 Ill. 644; Healey v. Acci. dent Assn., 25 N. E. Rep. 52 [133 Ill. 556; 9 L. R. A. 371; 23 Am. St.