22 Ohio C.C. (n.s.) 439 | Ohio Ct. App. | 1915
Under the terms of Section 4761, General Code, the city solicitor in the city school districts is made the legal advisor and attorney for the board of education, and as such it is his duty to prosecute actions against members or officers of such board for malfeasance or misfeasance in office and to be the legal counsel for such board in all civil actions brought by or against them, and to conduct such actions in his
A serious question was raised as to the constitutionality of the act of the legislature (103 O. L., 275) known as the Jung small school-board law, which made provision for a board of education to be composed of either five or seven members for the Cincinnati school district.
The local school board at the time said law was enacted was composed of a member from each ward, and was known as the large school board. If the new law were to be held to be constitutional it became the duty of the large school board to fix the number of members of which it should be composed, and those not holding over were to be elected at the November election. If the law were unconstitutional the large board would continue in existence, new members to be elected at the November election to succeed those whose terms were about to expire.
Several suits were instituted in the court of appeals and the supreme court, having for their object the determination of the constitutionality of the Jung law. The city solicitor had been instrumental in drafting this law and, so committed to its constitutionality, undertook to sustain it in the courts. The large school board, at a time when its existence and qualification were unquestioned, by resolution duly passed, retained Johnson
In the proceeding instituted by Fisk, as above referred to, the city solicitor declined to resist the application for a writ of mandamus on the ground that the law in question was unconstitutional, but expressed the willingness to resist that suit on :he ground that the relator had a certificate of election from the board of elections, which was the proper*
The question here is whether these attorneys employed by the large school board should be paid from the school fund. No question is raised as to the amount of compensation or the fact that the service was rendered, the only question being as to the power of the board to incur such expense in proceedings brought or resisted contrary to the official opinion of the city solicitor, their legal advisor. The further point is made that the quo warfanto case, in which the real service was rendered, was an action against members of the large board of education as individuals and should have been resisted by them as individuals, and that any expense incurred should not be paid for out of public funds.
It is true that the quo .warranto proceeding was against these members as individuals, but the real question to be determined was of public interest and was a matter with which the public was deeply concerned, as to the care, management and control of its public schools. The action was brought in this form as the readiest and most effective method of securing a decision from the supreme court upon the validity of the law. It was brought by 'the city solicitor on the relation of members of the
There is no question but that the action of the large board in employing counsel was taken in good faith for the purpose of procuring the judgment of the proper court as to their official duties, and that the attorneys so employed by the large board acted in good faith in all of the litigation in which they were concerned in securing a decision on the question of the validity of this law, and that they rendered a public service. Nor is there any question but that such action was necessary, as the city solicitor had properly taken the other side and the court finally sustained his official opinion.
Such unusual employment of counsel has been sustained in Kloeb, Auditor, v. Mercer County Commrs., 4 C. C., N. S., 565, and in The State, ex rel. Matthews, v. Boyden, Auditor, 18 C. C., 282.
The final decision of the supreme court shows that the suit instituted on the relation of Fisk could have been successfully resisted by the city solicitor, as he advised, without necessarily disposing of the constitutional question, and the suit instituted on the relation of Evans in the court of appeals proved to be unnecessary; but the employment was general in its terms and fixed an entire fee for all services, and, as above stated, no question is made but that the amount is proper and not excessive.
Judgment below will therefore be affirmed.
Judgment affirmed.
