
    MANDAMUS — CITY COUNCIL — HEALTH OFFICER.
    [Stark (5th) Circuit Court,
    February Term, 1902.]
    Douglass, Voorhees aud Donahue, JJ.
    
      State ex rel. Miller v. Massillon (Council).
    L Health Officer not Contemplated Under Sec. 1717 Rev. Stat.-
    A health officer, appointed by a board of health, as provided by Sec. 2115 Rev. Stat., is not an officer or appointee, in contemplation of Sec. 1717 Rev. Stat., and the board of health may increase or diminish his salary while he is in office.
    S. Compensation of Such Officer not Affected by Sec. 2702 Rev. Stat.
    The council of a city can be compelled, by mandamus proceedings, to is^ue its order or make an appropriation for the payment for services of such officer, in the absence of the certificate from the proper officer, that there were funds on hand for the payment of his services at the time the liability was incurred or increased. Section 2702 Rev. Stat. does not apply to such officer.
    8. Sections 2115 and 2140 Rev. Stat., are Mandatory — A Police Regulation.
    Sections 2115 and 2140 Rev. Stat., the former, providing that boards of health may appoint health officers, etc., and the latter, for payment of expenses of-board of health, are mandatory in character; and the establishment of a board of health is a police regulation of the state.
    Heard on Appeal.
    A. A. Thayer and Mr. Young, for plaintiff, cited:
    Sections 2H5 and 2140 Rev. Stat.; Hibbs v. Franklin Co. (Comrs.), 35 Ohio St. 48.
    Section 2702 Rev. Stat. does apply to the action of the board of health in this case. Lima Gas Co. v. Lima, 2 Circ. Dec. 396 (4 R. 22, 28); Findlay v. Parker, 9 Circ. Dec. 710 (17 R. 294); Wilson v. Cin-' cdnnati, 10 Re. 123 (19 Bull. 10).
    All the authorities cited by counsel for defendants in-relation to this Sec. 2702, it will be noticed, are held to apply to contracts lor improvements and contracts made by the city council. And even in cases involving contracts for improvements, the many courts ot this state have held that section not to apply where the improvements are to be paid for by special assessments. Put-in-Bay (Vil.) v. Webb, 7 Circ. Dec. 478 (18 R. 780); Tyler v. Columbus, 3 Circ. Dec. 427 (6 R. 224); Cincinnat v. Honnigfort, 1 Dec. 563 (32 Bull. 32).
    It is a rule constantly observed in the construction of statutes, that where the general provisions ol a statute conflict with the mere specific provisions of another, or are incompatible with its provisions, the latter is to be read as an exception to the former. Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E. Rep. 514]; State v. McGregor, 44 Ohio St. 628, 631 [10 N. E. Rep. 66] ; Knox Co. (Comrs.) v. McCombs, 19 Ohio St, 320, 345; State v. Newton, 26 Ohio St. 200.
    All the provisions of the board of health statute, in relation to the council, are mandatory. Even the first provision of the statute compels the council to establish the board of health, and in like manner compels the council to provide for its expenses. Even the expenses of the board of health in quarantining infectious cases of contagious diseases are provided for by this same Sec. 2115 and Sec. 2140, and come clearly within the exercise of the police powers of the state. 18 Am. & Eng. Enc. Raw (1 ed.) 744; Thomas v. Mason, 20 S. E- Rep. 580 [39 V/. Va. 526; 26 E. R. A. 727]; Davock v. Moore, 63 N. W. Rep. 424 L105 Mich. 120; 28 E- R. A. 783, 788]; Rae v. Flint (City), 15 N. W. Rep. 887 [51 Mich. 526].
    It would be contrary to public policy to endanger the public health by snaking it imperative to employ help who would not be sure of compensation. Elliott v. Kalkaska, 25 N. W. Rep. 461 [58 Mich. 452].
    The law does not require the performance of a duty, and at the same time withhold the means necessary for its payment. Eabrio Manchester, 59 N. H. 120, 122 [47 Am. Rep. 179],
    
      A. Pomereae and Solicitor Howell, for defendant, cited s
    Findlay (City) v. Pendleton, 62 Ohio St. 80 [56 Kf. 38. Kep. 649]; Comstock v. Nelsonville (VIL), 61 Ohio St. 288 [56 N. E. Rep. 15|; McGrew v. Elmwood Place (Vil.), 6 Circ. Dec. 106 (17 R. 676); State v. Hofiman, 25 Ohio St. 328; Bister v. Springfield, 49 Ohio St. 82, 100 [30 N. E. Rep. 274]; Stone v. Davenpo'rt, 7 Re. 83 (1 Bull. 102); Harrell v. State, 1 O. S. C. D. 101 (23 Bull. 150); Commercial Gaz. Co. v. Dean, 11 Re. 207 (25 Bull. 250); Cope v. Wellsville (Vil.), 11 Re. 205 (25 Bull. 250); Bond v. Madisonville (Vil.), 1 Circ. Dec. 581 (2 R. 449); Drott v. Riverside (Vil.), 2 Circ. Dec. 565 (4 R. 312); Rhodes v. Toledo, 3 Circ. Dec. 825 (6 R. 9); Holmes v. Avondale (Vil.), 5 Circ. Dec. 188, 189 (11 R. 430); Ampt v. Cincinnati, 2 Dec. 504 (2 H. P. 332); Dowry v. Cincinnati, 7 Re. 81 (1 Bull. 102); East St. Eouis v. Freels, 17 111. App. 339; Prince v. Quincy (City), 28 111. App. 490-; Culbertson v. Fulton (City), 18 N. E. Rep. 781 [127 111. 30]; Prince v. Quincy (City), 21 N. E. Rep. 768 [128 111. 443]; Prince v. Quincy (City), 105 111. 138 [44 Am. Rep. 785]; French v. Burlington, 42 Iowa 614; Cook v. Cook, 57 N. W. Rep. 1085, 1086 [99 Mich. 63].; Superior (City) v. Norton, 63 Fed Rep. 357 L12 C. C. A. 469; 24 U. S. App. 59]; Thompson v. Phillips, 12 Ohio St. 617; Parker & Worthington Pub. Health & Safety, Sec. 142, p. 160; Watt v. Altoona (City), 23 Pa. Co. Ct. Rep. 410; Watt v. Altoona (City), 9 Pa. Dist. Rep. 235; Wood v. Pleasant Ridge (Vil.), 5 Circ. Dec. 516 (12 R. 177); Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E- Rep. 514] ; Put-in-Bay (Vil.) v. Webb, 7 Circ. Dec. 478 (18 R. 780); Platt v. Pennsylvania Co., 48 Ohio St. 228 [1 N. E. Rep. 420]; Mills v. Norwood (Vil.), 11 Re. 416 (26 Bull. 348); Clark v. Columbus, 10 Re. 760 (23 Bull. 289); Wilson v. Cincinnati, 10 Re. 123 (19 Bull. 10); see Sec. 3085; Cincinnati v. Honnigiort, 1 Dec. 563 (32 Bull. 32); State v. Burleman, 4 Circ. Dec. 506 (8 R. 482); 14 Am. & Eng. Ene. Raw (1 ed.) 182; State v. Yeatman, 22 Ohio St. 546.
    
      
      For common pleas decision, see 13 Dec. 292.
    
   VGORHERS, J.

This cause is a proceeding in mandamus and comes into this court on appeal. There is but little controversy on the tacts of the case, and such facts as we have are submitted to the court on an agreed statement, reduced to writing, and for the purpose of the decision it will not be necessary to refer to them in many instances, as we deem the question that is submitted more a question of law than a question of fací.

There arc two primary questions submitted for the consideration of the court. The first question is, whether the relator was a legal officer or employe oi tbs board of health of that city, and the board oí health having increased his salary while he was then in office, whether that could be legally done and would be such an act as would lay a foundation in his favor for service at the increased rate fixed by the board of health.

The second question is, whether the council oi that city. would be compelled to issue its order or make an appropriation for the payment of his services, in the absence oi the certificate from the proper officer that there were funds on hand for the payment of bis services at the tíme the liability was increased.

Perhaps I stated the propositions in the reverse order ia which they were presented, but we think this would be the logical arrangement of She question that is properly before the court.

The first contention then is, could the board oi health increase hijj salary while he was still in the employ of the board ? That depends on the nature of his office or employment. There is no difficulty in the proposition of law that an officer cannot receive the benefits of an increase in his salary during the term ot his office; aud that does not necessarily depend upon an elective office, but it also reaches an appointee to an office. But before passing upon that proposition we think that the word “appointment” has significance. A person is elected to an office for a term, and before his term has expired by resignation, death or otherwise, there may be a vacancy in the office, then that office may be filled by appointment; but such an appointee would stand in the same relation that the officer who was elected would stand, and cannot receive an increase ol salary during the unexpired term of that office. But that is not this case.

What is the office of this officer or appointee who was appointed by the board ol health ? He is called a “health officer.” But has he a term of office? That would be the first question.

The statute now applies to cases where there is an increase during the term. The word "term” has significance, as we think, under that section of the statute. It simply means to limit. That is, during the period that the office is limited, during that period his salary shall not be increased. But in this case there is no limit fixed by law. It is. at the pleasure of the board of health that gives the health officer his position. It is at their pleasure. It is not a term, for the reason there is no limit to it. It may be likened unto a tenancy at will, not a term, because it has no limitation. Therefore, it would be difficult to bring such an employe within the terms of Sec. 1717 Rev. Stat., prohibiting an increase of salary ol an officer during his term, whether he be elected or whether he be appointed. We think that this is the true meaning of Sec. 2115 Rev. Stat.

“The board shall appoint a health officer, who shall furnish his name and address and such other information as may be required by the state board of health; and shall appoint a clerk, and may appoint as many ward or district physicians as it may deem necessary for the care of thé sick poor, and persons under quarantine surveillance, and may provide for such quarantined persons necessary attendants, nurses, medicine and support until convalescent. The board shall have exclusive control of their appointees, and define their duties an'd fix their salaries; and all such appointees shail serve during the pleasure of the board.”

It will be observed that the duties of the appointee or health officer are not prescribed by statute. He is the servant of the board of health that makes the appointment.. He is under their absolute control and direction; and in addition to that, they fix his salary. His salary is at the will of the board of health? His term of office is at their will; -they may terminate it at their pleasure.

Then the question will arise, it that be so, does such a person hold the office for a term ? Is there any limit to it, to which he may claim by virtue of his appointment ? We think not.

It being then exclusively within the discretion and power of the board of health to fix his salary, there is no reason why it may not be changed at any time at the pleasure of the board, whenever necessity would seem to require it. And there would be wisdom in such a provision. Such an officer as this, the duties required of him not begin fixed and laid down by the law, but are fixed and determined by the' board of health, we can see very good reason why his services to-day, or for a week or month, might be much greater than at other times, dependent upon the condition and purposes for which the office is created, namely, to take care of these persons that require help, and ior whom it is the duty of the board of health to provide. Now, that being the nature of the employment, perhaps it is a misnomer here to call him officer at all. He is more like an employe or servant of the board ot health. Then, if the board of health has the exclusive right to fix his duty, determine the length of time he shall serve them, fix his salary, when they act on that matter, it is then in compliance with the statute fixing the liability of somebody to pay. So we hold that in this case as a fact, that the health office here was not such an office as would come within the purview of Sec. 1717 Rev. Stat.; that it is such an office that the salary is not fixed, and is liable to be changed at the will or pleasure, and the necessity, as it may be looked upon and seen by the board of health.

While we are on this branch of the case we want to make a further observation that will be pertinent to the next question. It is not discretionary with the board of health, whether they will Have a health officer or not. It is mandatory. It requires that they shall have one. The board of health shall appoint this health officer, and then provide how he shall be governed under their authority and direction.

Then we might further observe the purpose ol this statute. We think this is a mandatory statute to create this office. We think it mandatory and lor the interest and benefit not of a local place entirely, that is of a city or village, but it is such a requirement, or police regulation of the state, that would benefit the state and the citizens at large, that there be somebody to take control and be responsible for conditions that may arise as contemplated by this statute. This will also bear on the next question that we will consider.

This law and the establishment ot a board of health is a police regulation, and may be so characterized. It is mandatory, and the legislature has imposed this duty, and the council of each city is required to establish such a board. If so, then the council are to perform certain duties, and certain officers that may be appointed and employed are not to serve the public gratuitously. Their services are to be fixed and regulated'by the board thus created. Then the council’s duties are pointed out by statute, Sec. 2140 Rev. Stat., as follows:

“When expenses are incurred by the, board of health, under the provisions of this chapter, it shall be the duty of the council, upon appliestion and certificate from 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 sum to carry into effect the provisions of this chapter.”

There are some further duties that are also mandatory. It is not left discretionary with the council when these expenses have been incurred. Such expenses as are contemplated by Sec. 2115 Rev. Stat., the services and salary of a health officer, these are expenses that are contemplated or may be contemplated under this section of the statute. These expenses have been incurred, and they have been certified, and it is the duty now of the council to make provision for that, and they have refused so to do. The contention, or legal excuse ottered why the council will not pay was, that there was no contract made for the employment of this health officer, ás required by Sec. 2702 Rev. Stat., namely, “that no contract or obligation shall be entered into for the disbursement of public funds unless the proper officer certifies the funds on hand for the payment of such contract or such obligation.’’ That is the one and only vital question we have in this case. Then the first inquiry would arise, is the service of this officer such as is contemplated by the*law as coming within the provisions of Sec. 2702 Rev. Stat.? If not, then that objection by the council tor not making the appropriation will not avail. We think that that question has been decided, yet we know there is some uncertainty about it. We think that the case of Wilson v. Cincinnati, 10 Re. 123 (19 Bull. 10), is significant and pertinent to the question we have now under consideration. Peck, J., says:

“ This is an action to recover rent claimed to be due from the city lor the use of a building known as the Armory building, situated on Court street. Under an act of the legislature requiring the city of Cincinnati to provide an armory for the militia, the city authorities made a lease of the building for the term of five years, and put the first regiment in possession, and the regiment continue in possession during the term of the lease, and for a large part of the term the city paid the rent.”

Toward the latter part of the term the finances of the city got into such a condition that there was no money to pay the rent, and then certain questions were raised as to the validity of the contract of lease, under what are known as the Worthington and Burns laws, Secs. 2699, 2702.

Those questions were reserved on demurrer to the general term, and there it was decided that the allegation that when the lease was made there was no money in the city treasury specially set apart to meet the expenditure to be incurred under it, did not constitute a defense, because the act under which the lease was made (74 O. L. 235, now Sec. 3085 Rev. Stat.), is mandatory, and requires the city to provide an armory for the militia and pay the expenses of the same, while providing no method ol raising funds therefor. ¡

We think that the statute we are considering is just as mandatory upon the board of health. That is not only mandatory upon the city council to create the board of health, but it is equally mandatory upon the board of health to create the office of health officer and to fix his salary, etc. These are things which the legislature of the state has required shall be done; and if they are done and the expenses have been incurred, then what is the duty ol council under Sed 2140 Rev. Stat. ? That they must make appropriation to meet this expense. There is no discretion in it, and it is not a subject of contract, but is a mandatory duty cast upon the board by the state, and they owe that duty to the state.

Without taking more time we are inclined to that view, although we feel the force of the arguments that have been made against this proposition. It is not as clear and free from doubt as we would like to have the question. But we may make this further observation, this court is somewhat committed to this line oí decisions whether right or wrong. We had a case in Newark at our last term, when the smallpox was prevalent in that city. A physician had been selected and detailed to take charge of the smallpox patients. One of the questions in that case was the undue action of the board, and the question was raised whether a majority of the board, a quorum, could make such arrangements. We held in that case that they could, and we think the authorities bore us out in that conclusion. That question is perhaps out of this case, but if it were in, we would hold in this case, that it was of such a character that a majority of the board would be competent to make arrangements for the appointment of this officer and prescribe his duties and fix his salary. But the principal question in that case was, after he had incurred these expenses, and the services had been faithfully rendered, and there was no dispute as to the amount, when it was certified to the council of the city of Newark, they refused to pay it or make any appropriation for it. Suit in mandamus was brought, and the question as to there being no certificate that the fund was in the treasury for the payment of these services was raised. Upon full consideration at that time, we came to the conclusion that that was not necessary, it was not such a case as came within the purview of the section of the statute that I have already referred to. So we issued a peremptory writ of mandamus to compel the city council ol Newark to make an appropriation to pay the services of this physician. That case is in the Supreme Court, li we were right then we are right now. If wrong then, perhaps we are equally wrong now. It is' the duty of the ¿ourt to be consistent and take chances of reversal, an'd we will render the same judg« ment and decree we did there — a peremptory writ will- be issued, and costs to follow.  