CONCURRING OPINION
By BENNETT, J.This record is very confusing. The legislation itself, to say nothing of the claimed waivers and agreements, were handled in such a way as to raise doubts and questions about every step connected with the subject matter of the law suit. In addition to what Judge Nichols has said, I wish to add the following comments as expressing my own personal opinion:
First, relative to the existence or nonexistence of an agreement or waiver for the *304period up to the passage of ordinance No. 37364, the record makes it clear that a great deal of negotiating and conferring occurred prior to the first- so-called voluntary cut, and that, leaving out of consideration for the minute plaintiff’s personal understanding about it, there is some sort of general understanding that the policemen as a whole would “waive” 10% of their salary under the ordinance rather than have the ordinance changed. It was felt by the policeman that it would thereafter be easier to terminate a waiver than to get a salary raise by ordinance. It seems to me that plaintiff’s own testimony shows that he was cognizant of this general situation. The record does not show any specific agreement made by him to accept the lower salary or any specific assent by word of mouth on his part to such a waiver. However, he accepted every pay check thereafter without a single protest that it was less than he was legally entitled to receive, and nearly five years expired before he filed suit. Either it was accepted by him as being in full under the alleged agreement, or on some other basis. On whai other basis?
It was argued that it was accepted not as payment in full but only as a temporary contribution to be made up when the city became financially able. There is some testimony in the record to this effect and one councilman, at least, gave that as being his understanding of the “agreement,” but plaintiff’s suit is not based on any such theory. He neither alleges nor proves anything as to such an agreement or as to the city’s present financial ability to pay him the amount he had waived. I believe it is circumstantially shown that these pay checks were accepted by plaintiff as payment in full for the period in question under the terms of an understanding as pleaded by the city.
Second, relative to the claimed invalidity of ordinance' No. 37364, it is true that this ordinance is far from being an artistic piece of work. It is suggested that it is fatally defective in that it does not state ' in its title that “§§467 to 487, inclusive,” are to be repealed; whereas they are repealed in the ordinance, and in that it is so indefinite and uncertain as to, render it invalid. It is also suggested -that the inclusion of the sections about the creation of a board of health do not, at least, strengthen its validity. The section about the Board of Health and the repeal of §§467 to 487, inclusive, seem to be included in this ordinance through almost unbelievable carelessness.
Section 460 purports to establish a Board of Health under the provisions of the new Municipal Code, enacted by the Legislature in 1902. The Youngstown charter, adopted in 1923, provided otherwise for the health administration of the city, and there has, in fact, not been and could not be a Board of Health in the city since the adoption of the city charter. This section must have been included in the ordinance solely because from year to year council, in adopting a general salary ordinance, had copied the form of prior ones and copied in this section as well as others. The same thing is true about the repeal of §§467 to 487, inclusive. A. reference to ordinance No. 36240, which was immediately prior to ordinance No. 37364, and is the ordinance . on which plaintiff relies to establish his right to vacation pay, reveals that it has the same heading, the same section §480 “establishing a Board of Health,” and. a repealer clause which repeals §§467 to 487, inclusive. The record, therefore, discloses -that ordinance No. 36240, on which plaintiff relies, is not only identical in these terms and in title with ordinance No. 37364, the one which plaintiff attacks, but also that insofar as the repeal provision is concerned it is shown that these sections had already been repealed by that prior ordinance itself.
Consequently the careless copying of the same clause in ordinance. No. 37364 would be an entirely futile proceeding. I do not believe that this court should hold this latter ordinance invalid because of this careless inclusion of a purported repeal of something already repealed, and I do not believe that plaintiff can rely on these alleged invalidities which are common, word for word, with the terms of the ordinance on which he relies. I further believe that a failure to include a reference to this futile repealer in the title could not invalidate the ordinance. §4226, GC, is at most a directory statute as to titles.
Relative to the ordinance being so indefinite as to be unintelligible and therefore invalid, I can only repeat in apology that it is an outstandingly inartistic piece of legislation, but I believe that it is reasonably ciear that its meaning was to change the salaries from the amounts- in thé first column to those in the last column of the various schedules. And here again the ordinance must have been clear enough m this respect to plaintiff who waited four years from the date of his first pay cneck under it before filing suit, and it is not .shown by thé record that in the meantime he had made any protest to anyone that he was getting less than he was legally entitled to receive.