
    Robert Moore v. The City of Cincinnati.
    By the 729th section of the municipal code, an ordinance of a city council,, passed under the act of February 9,1863 (60 Ohio Laws 4), fixing the compensation of the city treasurer, was continued in force notwithstanding the repeal of the act under which it was passed; and by such ordinance the compensation of the treasurer, as authorized by section 154 of the code, must be regarded as fixed, and allowed from year to-year, provided the sum so fixed does not exceed the maximum allowable under the 154th section.
    Error to the District Court of Hamilton county.
    The plaintiff was elected and served as treasurer of defendant for three consecutive terms, of two years each, commencing about the 20th of April, 1869. Previous to the commencement of his first term, the city council, under the act of February 9, 1863 (60 Ohio L. 4) had, by ordinance, prescribed the compensation of the city treasurer at $3,000 per annum. Afterward, on the 7th of May, 1869, the General Assembly of the state enacted the municipal code, which took effect July 1, 1869, by the 154th section of which, it was provided, that the treasurer of a city of that class (Cincinnati) “ shall be allowed as compensation for the disbursement of all moneys, other than school funds, which shall come into his hands, under the provisions of this act, such sum as the council may allow, not exceeding the following in any one year : On the first $5,000, two per cent. On the next $10,000, one and a half per centum,” etc. Section 729 of the act provides : “ All laws, ordinances, and resolutions heretofore lawfully passed and adopted by the trustees or council shall be, remain and continue in force, until altered or repealed by tbe trustees or council established by this act.” And by the 731st section of the code, the act of 1863, under which the ordinance fixing the treasurer’s compensation at $3,000 per annum was passed, was repealed.
    During that portion of plaintiff’s service subsequent to the taking effect of the municipal code, moneys, other than school funds, were disbursed by him to the amount of $23,239,863. Upon this sum the maximum rate named in section 154 of the code would yield a compensation of $46,664. The compensation actually received by him for that period was $17,359. It also appears, that the city council, though often requested by the plaintiff, refused or neglected to fix the sum, or the rate to be allowed the treasurer for his compensation, after July 1, 1869, otherwise than it had been fixed by the ordinance passed previous to his first election.
    The original action was brought to recover the difference between the maximum rate which could have been allowed under the code, and the amount received for services after the taking effect of the code.
    On demurrer to the petition, wherein the above facts constituted the substantial averments, the Court of Common Pleas held the same insufficierit, and dismissed the action.
    The District Court, on petition in error, affirmed the judgment of the Common Pleas.
    
      Paxton 8; Warrington, for plaintiff in error.
    
      Peck, Gerard 8¡ Molony, city solicitors, for defendant in error.
   By the Court.

The ordinance passed by the city council, under favor of the act of February 9, 1863, fixing the treasurer’s compensation at $3,000 per annum, was not repealed or superseded by the municipal code, or by the repeal of the act under which it was passed ; but was expressly saved by section 729 of the code. If the compensation fixed by the ordinance had exceeded, in any year, the maximum allowable under the code, it is true, the former would have yielded to the latter; but until altered or repealed by the council, the ordinance must be regarded as fixing, from year to year, the sum allowed by the council as compensation to the treasurer for the disbursement of all moneys, other than school funds.

Motion overruled.  