#### Pittinger *v.*The City of Wellsville.

*No municipal debt shall be incurred*— Unless *appropriations made by cotmcil therefor*— And *money in the treasury*— Section 43, • *Municipal Code*— Board *of Public Service can not employ janitor, when.*

The policy of our statutes respecting municipal corporations is that no debt shall be incurred for the ordinary expenses of the corporation unless an appropriation to meet it has been made by the city council, and the city auditor or clerk has certified to the city council that the money is in the treasury; and in the absence of such certificate, as required by Section 43 of the Municipal Code, the board of public service is without authority to employ a janitor for the city building, and a person so employed can not recover from the city for his services.

(No. 9649

Decided February 5, 1907.)

*509Error to the Circuit Court of Columbiana County.

On May 21, 1903, the plaintiff in error was employed by the month by the board of public service of the City of Wellsville as janitor of the city building of that city, and he rendered such services until July 1, 1903. Not receiving payment he sued the city and recovered judgment in the justice’s court. The city appealed the case to the court of common pleas, where a general demurrer to the plaintiff’s ¿mended petition was sustained and his petition was dismissed. On error the judgment was affirmed by the circuit court and error is prosecuted in this, court.

In addition to the foregoing facts it appears from the second amended petition that a large part of the city building is leased or let to the United States for a postoffice and to private persons for various purposes, and that the hall in the building is let for entertainments, and that the revenue from the building is paid into the city treasury and exceeds the wages of plaintiff as janitor. It further appears that the council of the city did not authorize the board of public service to employ a janitor and had not appropriated any money for that purpose, and that the city auditor had not certified that there was money in the treasury to pay for such services.

*Messrs. Smith & Lonvs,*for plaintiff in error.

The directors of public service haye the power and it is their duty to appoint or employ a janitor of the city building without being first authorized or directed by council to do so.

*510This is shown clearly by Sections 139, 141 and 145 of the Municipal Code, Vol. 96, Ohio Laws.

Section 143 provides that the directors can not make any contract over $500, except for a person employed in the department, unless first authorized by council. But they have power without such authority to make employment contracts or any contract for less than $500 without being first authorized by council.

The directors of public service may employ persons in their department without the auditor making the certificate mentioned in Section 45 of the Municipal Code- that the money to pay for the same is in the treasury to the credit of the proper fund.

When Section 45 is read in connection with Sections 143 and 145 it is clear that the provisions of Section 45 do not apply to such employments.

It is averred that it was necessary to employ plaintiff in order^ for the city to carry out its contracts with its tenants. This being the case, his employment was an indebtedness incurred by the city by its leases; it bound itself in these lea'ses to incur this expenditure, and the employment of plaintiff was not incurring any new liability, but was a liability caused by the rental contracts, and really was a carrying out and performing those rental contracts under which the liability to employ and pay a janitor was incurred.

The construction of these sections as claimed by the defendant would cause more evil than it could remedy, and would not be in harmony with the general rules for the interpretation of statutes. Bishop’s Written Laws, Section 92; *Lessee of Burgett*v. *Burgett,*1 Ohio, 469.

*511It is our claim that by the very terms of Section 45 it does not apply to contracts for employment of persons necessary to be employed to execute the powers and duties of the directors of public service. But if this section was as general in its nature and as free of expressed exceptions as was the Burns law, Section 2702, Revised Statutes, it would still not apply to the employment of officers and workmen whose services are necessary to .carry out the essential powers of the corporation or to preserve the property of the corporation.

The fact that there had been no ordinance passed appropriating the money among the different objects for which the corporation has to provide is no defense.

In regard to the claim that the plaintiff can not receive pay for the services he -has rendered on account of the money not having been appropriated among the several objects for which the corporation has to provide as required by Section 43, we answer that at the time plaintiff was employed the time had not yet come when such appropriations could legally be made; and in this emergency must all the powers of the municipality be suspended.

If it had been the intention of this section that no contract should be valid unless within the appropriation, it would have been so provided in Section 43 as it is in Section 45. It is merely a direction to the officers not to expend or pay any money not covered by these semi-annual appropriations.

It was not meant as a limitation on the power to contract, but as a direction to the officers to *512keep the expenditures within the appropriation. *United States*v. *Kirby,*74 U. S., 482.

We think the same common sense will sanction ■the action of the board of public service in employing a man to carry out the contracts of the city with its tenants, and thus avoid damages, and to preserve and care for the building and keep it fit to be occupied, especially when, by the peculiar situation caused by the law, no appropriation had been or could be made, and by reason thereof the auditor could not make the proper certificate, even though the money was actually in the treasury.

These statutes under consideration do not apply to the necessary running expenses of the corporation. It was frequently so held by the circuit and common pleas courts of Ohio under. Section 2702, Revised Statutes. *Lima Gas Light Co.*v. *City of Lima,*4 C. C. R., 22; *City of Findlay*v. *Parker*17 C. C. R., 294; *City of Columbus*v. *Bohl et al.,*13 Ohio Dec., 569; *State, ex rel.,*v. *City of Massillon,*24 C. C. R., 249; *City of Cincinnati*v. *Honnigfort et al.,*32 Bull., 32; *Smith v. Inhabitants of Dedham,*144 Mass., 177; *Grant v. City of Davenport et al.,*36 Ia., 396; *Reynolds v. City of Waterville,*92 Me., 292; *Wade et al.*v. *Oakmont Borough et al.,*165 Pa. St., 479; *City of Valparaiso et al.*v. *Gardner,*97 Ind., 1.

Where the' general provisions of a statute conflict with the more specific provisions of another, or are incompatible with its provisions, the latter is' tó be read as an exception to the former. *City of Cincinnati v. Holmes, Admr., et al.,*56 Ohio St., 104; *State, ex rel., v. McGregor,*44 Ohio *513St., 628; *Commissioners*v. *McComb et al., Exrs.,*19 Ohio St., 320; *Labrie*v. *Manchester,*59 N. H., 120; *Wilson*v. *City of Cincinnati,*19 Bull., 10, afterwards affirmed by the Supreme Court without report; *State, ex rel.,*v. *City of Massillon,*24 C. C. R., 249.

It would be contrary to public policy to endanger the public property by making it imperative to employ help who would not be sure of compensation. *Elliott*v. *Kalkaska Supervisors,*58 Mich., 452, 25 N. W. Rep., 461.

As a business proposition the plaintiff’s salary would be paid out of the rents derived from the building. The expense of the building would be paid from its receipts. The money from which his salary would be paid not being money derived from taxation the restrictive provisions of Sections 43 and 45 do not apply. *Kerr*v. *City of Bellefontaine et al.,*59 Ohio St., 446, *Comstock*v. *Village of Nelsonville,*61 Ohio St., 288; *Elster*v. *City of Springfield,*49 Ohio St., 84.

The defendant received the services rendered by plaintiff. These services were necessary for the protection of the building and to carry out the city’s contracts with its tenants, and it should not now be allowed to set up these statutes under consideration to escape paying this just debt.

*Commissioners*v. *Baltimore Short Line Railroad Co.,*37 Ohio St., 205; *Wilder*v. *Commissioners,*41 Ohio St., 601. The doctrine of estoppel applies to municipal corporations. *City of Mt. Vernon et al.*v. *State, ex rel.,*71 Ohio St., 428.

*Mr. Charles Boyd,*city solicitor, for defendant in error.

*514The powers of such a board as this are to be strictly construed. It is only such powers as are expressly conferred and such as may arise by fair implication because essential to carry out the express powers. *State, ex rel.,*v. *Boyden, Auditor,*6 Ohio Dec., 511, 4 N. P., 322; *Bloom*v. *City of Xenia,*32 Ohio St., 461; *City of Ravenna*v. *Pennsylvania Co.,*45 Ohio St., 118; *Elyria Gas & Water Co.*v. *City of Elyria,*57 Ohio St., 374; *Buchanan Bridge Co.*v. *Campbell et al.,*60 Ohio St., 406; *City of Lancaster*v. *Miller,*58 Ohio St., 558; *City of Wellston v. Morgan,*65 Ohio St., 219; *Comstock et al.*v. *Village of Nelsonville et al.,*61 Ohio St., 288; 13 Am. & Eng. Ency. of Law, p. 1039.

Any acts a city council may -assume to perform, not fairly within the powers conferred on it by statute' are *ultra vires. City of Alton*v. *Aetna Ins. Co.,*82 Ill., 45.

There is no implied municipal liability in Ohio. *City of Wellston*v. *Morgan,*65 Ohio St., 219.

Section 1693, repealed in 1902 by the code, is still substantially re-enacted in section in this, that no ordinance or resolution involving the expenditure of money, etc., shall be passed by council except in the manner directed in Section 122, Ohio Code, page 315, Ellis’ Code.

Section 122 supersedes old Section 1693 and was changed so the various boards could do business in pursuance to the appropriation of money by council.

This is the only way a corporation can contract. *Lima Gas Co.*v. *City of Lima,*4 C. C. R., 22, Section 212,’Code.

Certainly, when the restrictive statutes of Ohio *515are considered, this board must act in accordance with the appropriation ordinances passed by council. To do otherwise would be municipal anarchy. Section 41, Ohio Code, Ellis, 167; *Ampt*v. *City of Cincinnati,*5 N. P., 98.

*Stem*v. *City of Cincinnati,*6 N. P. 15 and 13 Laning Common Pleas Decisions 200, construing old Section 1693, which was somewhat similar, it was uniformly held that the appropriations must be detailed and specific. Ellis, 169, footnote 2. Section 17, Ohio Statutes, unrepealed.

Section 45, Code, Ellis, 171, also commonly known as the Burns law, provides that before any obligation is incurred the auditor must certify that the money required is in the treasury.

Neither of these statutes have been complied with according to the petition; the money has never been appropriated as required by law, the council has refused to sanction the employment of a janitor, and the auditor has not certified the money is in the treasury.

In the case of *State, ex rel. O’Leary,*v. *Salem, etc.,*reported only in 10 O. C. D., 398, Cuyahoga county, it was held that even under a statute conferring certain powers to a department to make appointments, that a janitor is not an officer of the city, but an employee, the same as a laborer on the streets or an engineer in the water works. We think that possibly an officer of the city elected by the people pursuant to state law could compel the council to appropriate him his salary, hut not so as to other debts -contracted by the departments. *State, ex rel.,*v. *Jennings et al.,*57 Ohio St., 415.

If this service board can decide what is neces*516sary, and such decision shall be final, and if they can employ one janitor without an appropriation, then why not employ one hundred and so on indefinitely; and on the same theory, if the roof should leak why not put on a new one, why not remodel the building, why not paint it, or do anything they deem necessary, and set aside the statutes made in order to compel a reasonable tax rate? *Kerr v. Village of Bellefontaine et al.,*13 C. C. R., 24; *State, ex rel., v. Eshelby, etc.,*2 C. C. R., 468; *City of Findlay v. Parker et al., Trustees,*9 O. C. D., 710; Ellis, 173, footnote.

As we understand the cases generally hereafter cited is has been uniformily held that these restrictive statutes applied to funds raised by taxation. *Kerr v. Bellefontaine,*59 Ohio St., 446; *Comstock et al. v. Village of Nelsonville et al.,*61 Ohio St., 288.

So employment of a street superintendent at a weekly salary is not authorized unless at the time of employment money to pay for such employment was in the treasury and so certified. *State, ex rel., v. Hoffman, Auditor,*25 Ohio St., 328.

The same applied to employment of a superintendent over the construction of a town hall. *Drott*v. *Village of Riverside,*4 C. C. R., 312.

So employment of an attorney. *Bond*v. *Village of Madisonville,*2 C. C. R., 449; *City of Findlay*v. *Pendleton et al.,*62 Ohio St., 80; *Easton v. Village of Hyde Park,*6 N. P., 257.

*Uhrig*v. *Village of Reading,*11 Ohio Dec., 704, held that the Burns law,- or old Section 2702 (now Section 45 of the Code), applied to the appointment of deputy marshals by the council.

The monejr must be certified in the treasury. *517*City of Lancaster*v. *Miller,*58 Ohio St., 558; *Buchanan Bridge Co.*v. *Campbell et al., Comrs.,*60 Ohio St., 406; *Comstock et al.*v. *Village of Nelsonville et al.,*61 Ohio St., 288; *City of Wellston v. Morgan,*65 Ohio St., 219.

None of the rents from the city hall are collected by the service board, but go direct to the sinking fund trustees to be disposed of by them as other moneys. Section 112 and 216, Code.

So a fund could never be created as was the case under the old laws applicable to water works and gas trustees under which many decisions have been made. Therefore, the money spent must come from appropriations and from money raised directly by tax.

The tax limit for municipal purposes exclusive of sinking fund must not exceed ten mills, except when greater levy is allowed by vote of the people. ,Our city comes under the ten mills class. Sections .32 and 33 Ohio Code, Ellis, 157. Such statutes are strictly construed. *Mays*v. *City of Cincinnati,*1 Ohio St., 268.

Section 35 provides that the department shall report an estimate to the mayor before the first Monday in March, which estimate shall be itemized. Ellis, 160. This provision has been held mandatory. *Ampt.*v. *City of Cincinnati et al.,*5 N. P., 98; *Stem*v. *City of Cincinnati et al.,*6 N. P., 15. The service board has no power to borrow money and how can they have power to contract debts? They are not even trustees of an express trust, and can not maintain a law suit. *Kerlin Bros.*v. *City of Toledo,*10 Ohio Dec., 508. No provision has been made for paying debts made by overdrawn funds. Section 2701, *518or the refunding bond statute, has been construed as follows: Bonds can not be issued to meet

deficiencies in any department of the city. *Hermann et al.*v. *City of Cincinnati,*9 C. C. R., 357 (affd. 52 Ohio St., 676); *Altaffer et al.*v. *Nelson, Mayor, et al.,*18 C. C. R., 145; *City of Cincinnati*v. *Guckenberger,*60 Ohio St., 353; *Newton*v. *City of Toledo et al.,*18 C. C. R., 756 (affd. 52 Ohio St., 649); *Keehn*v. *City of Wooster et al.,*13 C. C. R., 270.

• It therefore seems plain that where no obligation is made for the payment no obligation of any kind can be contracted or incurred in any manner, and even a recital on a bond can be subjected to attack, and the purchaser is charged with notice as a reference to many decisions will plainly show.

Section 145 of the Code, giving the service board ■power to remove its employees at any time, had for its object the keeping of this department within appropriations and allows it the right to remove its employees, or janitors, as in this case, at any time.

Section 139 says the service board shall be the chief administrative' board of the city. They are therefore not the board which dictates the legislation of the city, but only supervises and directs such work as council may authorize. This is made very clear when we read old Section 1678 unrepealed, Ohio Statutes.

Section 141,- page 351, Ellis Code, defines the powers of this board.

Further showing that the service board does not manage all of the city -building, will say that in this city the jail, fire department, and mayor’s office, which are located in this building, are cer*519tainly under control of the safety board. Ellis, 362, footnote 1.

Further, the service board can not sell this building, nor rent it, nor lease it in any manner. Section 24, Ohio Code.

Nor do they collect the rents from this building. Section 112 and 216, Ohio Code.

The foregoing show plainly that the service board are merely supervisors of this building and it seems clear to me that they must manage in the way council shall direct, and are powerless to act without legislation from council.

In *State, ex rel.,*v. *Philbrick, etc.,*13 Ohio Dec., 158, the whole controversy in the foregoing case seems to our minds to be fully discussed by Judge Williams, and be held, after a very able review of the Ohio authorities, that Section 2702 or Section 45, Ohio Code, or the “Burns Law,” did apply to all the running expenses of the city, and any expenditures made not in accordance with such statute are void.

Counsel for plaintiff has argued at great length that such limitations 'as Section 45 of the Code are not mandatory. They cite *Defiance Water Co.*v. *City of Defiance et al.,*12 O. F. D., 299, yet the Supreme Court of the United States refused to hear an appeal in this case, and this court in 68 Ohio St., 520, speaking of the same case, says, page 521, “It is clear that a cause of action to enjoin the performance of the contract accrued as soon as the parties attempted to enter upon it” for the reason that the “Burns Law,” or Section 45 of the Code, as it now stands, did apply. Smith on Municipal Corporations, Section 873.

*520Summers, J.

It is provided by Section» 141 of the Municipal Code of 1902 that the directors of public service shall have, the management of “all public buildings and other property of the corporation not otherwise provided for herein.” Section 145 provides that they “may employ such superintendents, inspectors, engineers, harbor masters, clerks, laborers, and other persons, as may be necessary for the execution of the powers and duties” of their department, and that they shall fix the compensation and bond of all persons appointed or employed by them, and that no person shall be removed except for cause satisfactory to said directors or a majority of them.

The principal contention is whether a liability on the part of the city may be incurred under these facts without an appropriation to meet it and without the filing with the city council of a certificate of the city auditor that money therefor is in the city treasury. Section 45 is as follows: “No contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the expenditure of 111011639 be passed by the council or by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there is 110 auditor, the clerk thereof, shall first certify to council 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 immediate^ recorded; and the sum so certified shall not thereafter be considered unappro*521priated until the corporation is discharged from the contract, agreement or obligation, or so long as the ordinance, resolution or order is in force; 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, and no party whatever shall have any claim or demand against the corporation thereunder; nor shall the council, or a board, officer, or commissioner of any municipal corporation, have any power to waive or qualify the limits fixed by such ordinance, resolution or order, or fasten upon the corporation any liability whatever for any excess of such limits, or release any party from an exact compliance with his contract under such ordinance, resolution or order; nor shall any member of the council, board, officer or commissioner of the corporation, have any interest in the expenditure'of money on the part of the corporation other than his fixed compensation; and a violation of any provision of this section shall disqualify the party violating it from holding any office of trust or profit in the corporation and render him liable to the corporation for all sums of money or other thing he may receive contrary to the provisions of this section, and if in office he shall be dismissed therefrom; provided, however, that the council of any city may authorize and the council of any village may make (subject to the provisions of Sections 2491 and 3551 of the Revised Statutes of Ohio) a contract with any person, firm or company for lighting the streets, alleys, lands, lanes, squares and public places in the municipal corporation, or for furnishing water to such corporation, or for the col*522lection and disposal of garbage in said corporation, or for the leasing of the electric light plant and equipment, or the water works plant, or both, of any person, firm or company therein situated, for a period not exceeeding ten years, and the requirement of a certificate that the necessary money is in the treasury shall not apply to such contract; provided further, that such requirement shall not apply to street improvement contracts extending for one year or more, nor to contracts made by the board of health of any municipality, nor to contracts made by any village for the employment of legal counsel.”

This section comprises Sections 2699 and 2702 of the Revised Statutes (Bates’ 3d Edition). The latter part of it, omitting the provisos, is a literal copy of Section 2699, known as the Worthington law, and the former part is a copy of Section 2702, known as the Burns law. Prior to the enactment of the Worthington law it was provided by Section 656 of the Municipal Code of 1869 that “the council shall not make appropriations nor contract debts for the ordinary purposes of the corporation, exceeding the amount of taxes and revenues from other sources for the current year.” This, however, wholly failed to prevent municipalities from becoming deeply in debt for their ordinary expenses, and hence the occasion for the Worthington and Burns laws. The former applied only to. Cincinnati and was under consideration in *State, ex rel.,*v. *Hoffman, Auditor,*25 Ohio St., 328. The facts in that case are very similar to those in the present case. The board of improvements employed a superintendent of street improvements at stipulated wages per week, *523and after he had performed a week’s service the board made a certificate in his favor authorizing the city áuditor to issue to him a warrant on the city treasury for the amount of his wages. The auditor refused to issue the warrant 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 expenditure; and 2. That he had not so certified to the city council, and it was held that he properly refused the warrant, notwithstanding after the employment the money had come into the treasury and then was set apart to meet the expenditure.

Section 2702 applied to all municipal corporations and was more specific than Section 2699.

The provisions of the new code do not indicate a relaxation of the legislative policy in this respect, but, if anything, an intention to make it more efficient.

Section 35 provides that on or before the first Monday in March of each year the several officers boards and departments of the municipality shall report an itemized estimate to the mayor and auditor of the municipality of the amount of money needed for their respective wants for each month of the incoming year. Practically the same thing is required by Section 37, and by Section 38 the mayor is required on the first day of April each year to submit to council an annual budget, and by Section 39 the council is required after examining and revising the budget to determine by ordinance the percentage to be levied for the purpose therein specified, and after its submission to the board of tax commissioners the council is, by Section 40, annually on or before the first *524Monday in July to certify to the auditor of the county, the rate of taxes by it levied. It is provided that the ordinance “shall specify distinctly each and every purpose for which the levy is made and the per cent, thereof,” and by Section 41 it is provided that the corporation treasurer shall keep a separate account with each fund for which taxes are assessed (?) (levied), and “unless expressly otherwise provided by law, all money collected or received on behalf of the corporation shall be promptly deposited in the corporation treasury in the appropriate fund,” and “unless otherwise provided by law no money shall be drawn from the treasury except upon the warrant of the auditor *pusuant to an appropriation by council”;*and by Section 43 it is provided that “in all municipal corporations the council shall make, at the beginning of each fiscal half year, appropriations for each of the several objects for which the corporation has to provide, out of the moneys known to be in the treasury, or estimated to come into it during the six months next ensuing from the collection of taxes and all other sources of revenue. All expenditures within.the following six months shall be made with and within said appropriations and balances thereof.” Section 17, Revised Statutes, provides that an officer or agent of a municipal corporation, who is charged or intrusted with the construction, improvement, or keeping in repair of any building or work of any kind, or with the management or providing for any public institution, shall not make any contract binding or purporting to bind the municipal corporation, to *pay*any sum of money not previously appropriated for the purpose for which such contract is made, and remain*525ing unexpended and applicable to such purpose, unless such officer or agent has been authorized to make such contract; and if any such officer or agent make or participate in making a contract without such appropriation or authority, he shall be personally liable thereon, and the municipal corporation in whose name or behalf the same was made shall not be liable thereon. These provisions not only clearly indicate an intention but expressly provide that the necessities of the municipality shall be estimated and itemized and that funds to meet them shall be appropriated and that the. expenses incurred shall be limited to the funds appropriated.

The fact that the management of all public buildings and authority to employ the persons necessary to effect that purpose are vested in the directors of public service, and the fact that expenses for the compensation of persons employed therein are excepted from the requirement of Section 143 that certain expenditures in their department must be authorized by ordinance, do not give them an absolute discretion, but their authority to incur a liability on the part of the city is subject to the limitation that funds to meet the liability have been appropriated and that the auditor has certified that the money is in the treasury.

The fact that the certificate of the auditor is required by Section 45 to be filed with the council and not with the board does not imply a legislative intention to limit the requirement of that section to expenses incurred by council. Section 44 requires that the auditor and treasurer monthly shall make up and forward to the mayor a statement of the balances in all funds, but it will not *526be contended that because the statement is' sent to the mayor rather than to the board and officers that expend the funds that they are not concerned about a balance. At the time the original section was enacted the council in nearly all of the municipalities exercised administrative as well as legislative power. .Moreover the section expressly applies to boards and officers as well as to council.

The appropriations authorized by Section 43 are not limited to money already in the treasury but to that estimated to come into it from the collection of taxes and all other sources of revenue during the six months next, ensuing. If the requirement for the auditor’s certificate works an inconvenience it may be, in view of the authority conferred by Section 43 to make appropriations of money estimated to come into the treasury, that the code should be so amended as to except from the requirement all expenditures provided for by the appropriations, so as that, for the purpose of the certificate, money estimated to come into the treasury, in the existing fiscal half year, from the collection of taxes and all other sources of revenue, shall be deemed to be in the treasury. And if it is desirable that the certificate be filed and recorded in the department in which the expense is to' be incurred rather than with the city council that is a matter that may be easily provided for by legislation.

There is room for much improvement in the statutes relating to municipal corporations, and while perhaps it is not desirable that bills shall' be drawn by those whose duty it may be to interpret them when thejr become laws, yet the public interest may excuse if not require that the need *527be at least suggested. Moved by such considerations, it may be said that there have been instances in which the councils of municipalities have provided for a larger police force, a larger fire force than was needed, and that they have been embarrassed because no way seemed to have been provided by which the expenses of the departments might be reduced so as not to be in excess of the appropriations which they thought proper to' make, and it is suggested that it might be well to prescribe a way and to require that in the appropriations made by the council at the beginning of each fiscal half year the amount allowed for the payment of salaries and wages of men in these departments shall be expressly appropriated.

Reference is made to decisions that certain contracts or expenses were not. subject to the requirement of the Burns law. It is sufficient to say that to prevent injustice or absurd consequences •they are based upon the ground that the legislature must have intended an exception, or on the ground that though within the letter they were not within the reason of the law, arid, since no such consequences will follow a literal interpretation of the law in the present instance and in view of the fact that in the present section many such consequences have been anticipated by the provisos, it would not be profitable to review them.

The case so far has been considered upon the implied admission that the rooms in the building have been leased or let by the city council and that the rentals have been paid into the city treasury. Section 2566, Revised Statutes (Bates’ 3d Edition), which was not repealed by the Code, pro*528vides: “When there is a public hall, erected by taxation, in any city of the second class or village, and the building or any part thereof may not be needed for public business, the council shall lease the building or part thereof as the case may be, for private offices, lectures, or like purposes,” and' that the money received for rents shall be forthwith paid into the treasury of the municipal corporation. Section 24 of the code provides: “No contract for the sale or lease of any real estate shall be made unless authorized by an ordinance ■approved by the votes of two-thirds of all members elected to council, and by the board or officer having the supervision or management of said real estate,” and Section 26 provides that the money arising from the sale or lease of any real estate shall be paid into the treasury; and it is stated that the mayor’s office, the fire department and the jail also occupy this building. Whether or how these various provisions may be reconciled it is not now necessary to determine, for the reason ■that it seems clear that the rentals are required to be paid into the city treasury, and, that being so, the expense of a janitor could not be incurred .until there had been an appropriation and a certificate, whether the power of employment was in the board of public service or in the council.

*Judgment affirmed.*

Si-iauck, C. J., Price, Crew, Spear and Davis, JJ., concur.