APPOINTEES OF A BOARD OF HEALTH.

Court of Appeals for Ashtabula County.

#### State, ex rel Schmidt, *v.*Colson, Auditor.

Decided, September 2, 1918.

*Office and Officer*— Appointive *Positions in Health*Department— *Abolished by Repeal of Ordinance Establishing Such Positions.*

The repeal of an ordinance, passed pursuant to the provisions of Section 4404, General Code, establishing a board of health, abolishes all appointive positions under such board.

*EL. G.*Kingdom, for plaintiff in error.

*J. E. Helman.,*contra.

Metcadee, J.

This is an action in mandamus to compel the defendant in 'error, *W.*B. Colson, as auditor of the city of Conneaut, to issue to the plaintiff in error, Karl Schmidt, a warrant for five months’ pay as clerk of the board of health of said city. A demurrer to the petition was sustained by the court of common pleas.

The council of the city of Conneaut, under the provisions of Section 4404, General Code, passed an ordinance creating a board of health, and relator was thereupon appointed clerk of such board. Some time afterwards, however, the council repealed the ordinance, and relator claims that in spite- of such repeal he is entitled to recover the amount of his salary from the time of the repeal of the ordinance until the end of his appointive term.

Section 4404, General Code, provides:

> “The council of each municipality shall establish a board of health, composed of five members to be appointed by the mayor and confirmed by council who shall serve without compensation and a majority of whom shall be a quorum.” * * *

Section 4405 provides that if the municipality fails or refuses to establish a board of health or appoint a health officer, the state *141board of health may appoint a health officer and fix his salary and term of office, and grants to such officer the same powers and imposes upon him the same duties ag health officers appointed in villages in place of a board of health.

It is urged that Section 4404, General Code, is mandatory, and that its requirement that the council shall establish a board of health has the force of a constitutional provision, so that when the council has acted in pursuance of the provisions of the law and established a board of health it can not abolish the board, or deprive the employees thereof of the emoluments of their respective offices, without further action on the part of the Legislature; in other words, that an ordinance of the council-of a municipality, once passed, in pursuance of a grant of power by the Legislature, becomes of as much force and effect as a provision of the Constitution itself and must remain the law of that particular municipality until the Legislature grants the power of repeal.

We can not assent to this proposition.

•Of course it goes without saying that the council of a municipality can only exercise the powers delegated to it by the-General Assembly. But ig a specific grant of power required' to authorize the council to amend or repeal an ordinance which it had the power to pass? The efficacy of any-legislative body would be entirely destroyed if the power to amend or repeal its legislative acts were taken away from it. The grant of the power to pass the ordinance in question, or any ordinance .for that matter, carries with it the power to amend or repeal the same act.

The Constitution itself provides the method by which it may be changed.

The Legislature may repeal or modify an act which it has passed, and it seems to -us to be utterly illogical to say that a municipality can not repeal an act of its legislative body, whether the power to repeal is expressly granted or not. And we think that the repeal of the ordinance creating the board of health also abolished all appointive positions under such board. *State, ex rel,*v. *Covington.*29 Ohio St., 102; *State, ex rel,*v. *Jennings,*57 Ohio St., 415; *McHugh*v. *Cincinnati,*1 Cin. S. C. R., 145, and *State*v. *Brown,*38 Ohio St., 344.

*142Tbe judgment of tbe court of common pleas sustaining tbe demurrer to tbe petition is affirmed.

Pollock, J., and Farr, J., concur.