175 N.E. 607 | Ohio | 1931
The original action of the taxpayers, Clark and Freeman against Wright (Wright v. Clark et al.,
The taxpayers had no statutory authority to bring their action, although Section 4311, General Code, authorizes an injunction to prevent the misapplication of funds by a municipal corporation; Section 4312, General Code, applies to specific performance of municipal contracts that are being avoided; and *417
Section 4313, General Code, to applications for writs of mandamus to compel the performance of official duties. The taxpayers' action not coming within the scope of such sections, this action was brought on behalf of all the taxpayers and inhabitants of the village of Bedford to recover back the money wrongfully expended; the case of Walker v. Village ofDillonvale,
The action had certain characteristics of an equitable nature, being one brought for the use and benefit of those standing in the position of a cestui que trust, and not brought by the taxpayers in their individual capacity, or for their private gain, but rather, as suggested, in the discharge of a trust. It had also certain resemblance to an accounting, covering a number of items and transactions.
We reach the conclusion that the court sitting in the case possessed sufficient equitable jurisdiction to justify the allowance of an attorney fee out of the fund created by the efforts of the taxpayers. The amount returned to the village of Bedford under this proceeding was charged with the expense incident to its recovery. The right of a chancellor to subject a fund created and under the control of the court to the reasonable cost of such creation is well. established. The principle is enunciated in the case *418
of Kimble v. Board of Commissioners of Franklin County,
Much reliance is placed by plaintiffs in error upon the case of Marion County v. Rives McChord,
It is apparent that the paramount question decided in that case was the right to sue the county for attorney fees in the absence of statutory authority, and much is said in the opinion upon the distinction between a county and a municipal corporation. No allowance of attorney fees was made in the original action in which the money was recovered, *419
nor while the fund was under the court's control. However, we call attention to the case of Fox v. Lantrip,
The principle thus announced is well reasoned in the opinion, wherein it is said, on page 766 of
"There is another question that should be disposed of. In the lower court the appellees moved the court to allow their attorneys, out of the fund recovered, a fee for their services in recovering this money for the county. This motion was overruled, to which appellees excepted and prayed in the lower court, as they had a right to do on this record, an appeal to this court.
"We think the motion should have been sustained and a reasonable attorney fee allowed. It is very commendable that public-spirited citizens should endeavor to protect the taxpayers of a county from the efforts of an accommodating fiscal court to make unauthorized and unlawful appropriations of the public funds and to seek to recover the money so illegally disbursed from the persons to whom it was wrongfully paid.
"And when, as in this case, the public authorities whose duty it is to bring a suit to recover public *420 funds wrongfully paid out, refuse to do so, and the duty is thus imposed on the citizen in his private capacity, he should be allowed his attorney fees if successful.
"Citizens should be encouraged to bring suits like this, and when they have succeeded in covering into the county treasury money for the benefit of the people of the county that would otherwise be lost, it is no more than right and just that they should have these fees. If attorneys' fees could not be allowed in cases like this and a citizen were required to pay out of his own means attorneys' fees expended in collecting, for the benefit of the public, a public fund, there are not many citizens who would care to voluntarily incur this expense. They would rather bear the probably trifling personal loss sustained by the illegal appropriation than subject themselves to the much larger loss that would be incurred in attorney fees.
"We, therefore, think that when upon demand the authorities who should bring a suit like this, fail or refuse to do so, and it is brought by private citizens, the court trying the case should, when the suit has been prosecuted to a final conclusion and the fund sought to be recovered has actually been collected, in whole or in part, and paid into the county treasury, make a reasonable allowance to the attorneys and direct the payment of the sum by the fiscal court. But in no case should any allowance be made unless the fund sought to be recovered has been recovered in whole or in part and actually paid into the county treasury, and then the fee allowed should be in proportion to the services rendered as well as the amount recovered, but in no *421 instance exceed the sum actually collected and paid into the treasury. If no money is recovered or paid into the county treasury, then no allowance should be made for attorney fees."
An allowance of the attorney fees was made payable out of the fund collected and paid into the county treasury. It thus appears that the latter case is more nearly in point, and entitled to greater weight than Marion County v. Rives McChord.
Reference may be made to cases involving somewhat analogous situations, in which attorney fees were allowed out of funds collected. State, ex rel. Bonner, v. Andrews,
Our attention is called to cases in which the allowance of attorney fees has been denied, such as State v. National SuretyCo.,
No such constitutional or statutory provision exists in this state, hence this case is not in point.
Our attention is also called to Criswell v. Board ofDirectors of Everett School Dist.,
The case of State, ex rel. Heald, v. Zangerle,
While it is true that the original action was for money only, to wit, to recover the amount claimed to have been unlawfully paid to Wright, yet we are of opinion that the action, begun by the taxpayer for no personal gain, but for the benefit and interest of all the taxpayers and inhabitants of the village of Bedford, possessed certain equitable characteristics that justified the court, after it had the fund in question under its control, in deducting therefrom the necessary expenses incident to its creation. The situation was not unlike a suit brought by a stockholder of a private corporation to recover money belonging to the corporation, in which suits courts frequently allow attorney fees out of the fund created.
In 4 Dillon on Municipal Corporations (5th Ed.), Section 1588, we find: "It has been held by the courts of several states that when a municipal or other public corporation has a cause of action which should be prosecuted for its use, whether that cause of action be legal or equitable, and its governing body or other proper officer wrongfully neglects or wrongfully refuses to commence an action thereon, a taxpayer may, on behalf of himself and all others similarly situated, commence an action in equity to redress the wrong to the corporation, making the corporation a defendant as trustee for all its members. Accordingly, it has been held that a taxpayer may sue to recover back, on behalf of the municipality, moneys of the municipality unlawfully paid to officers, contractors and others." *424
Such a fund, referred to in the above quotation, created in a court action and still under the control of the court, is in our opinion subject to the court's power, in the exercise of its jurisdiction, equitable in character, to set aside such portion of that fund as is incident to the expense involved in its creation. The fact that the village received the money direct from Wright, and receipted the docket of the common pleas court, did not make the fund less liable to the lien the court had imposed upon it. It was recovered through the medium of the court and was received subject to its order relating thereto.
Entertaining this view, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, ALLEN, KINKADE, and ROBINSON, JJ., concur. *425