21 N.E.2d 987 | Ohio | 1939
Lead Opinion
It should be noted first that certain questions are not before this court for consideration. The respondent is not complaining about the allowance of the writ of mandamus. Nor does he object to the amount of the attorney's fee and expenses allowed, or to the authority of the Court of Appeals to tax the costs against him. Likewise, he concedes the capacity of the relator to institute this action. His only complaint in this court is set forth in the following four sentences in his brief:
"However, it is submitted and we respectfully contend that there is no authority for the granting of attorney fees in this type of action. This action was brought to compel a public official to carry out a ministerial duty. No fund was before the court nor did a fund come into the court for distribution as a result of the action of appellee. It seems clear that attorney fees can only be ordered paid when a fund is directly created by the action of the taxpayer and when such fund is in the custody of the court."
From a study of the opinion of the Court of Appeals it is apparent that in that court the respondent placed some reliance upon the following prohibition in Section
"* * * nor, shall any money be paid, on any claim, the subject-matter of which shall not have been provided for by pre-existing law, unless such compensation, *591 or claim, be allowed by two-thirds of the members elected to each branch of the General Assembly."
The respondent there asserted that the only method through which such fees may be collected is the allowance of the claim by the Legislature. In disapproving this view the Court of Appeals relied upon the reasoning of this court in the case ofState, ex rel. Ach, v. Braden,
The respondent's present contention is that as a result of this action no fund has been created and paid into court, and therefore the Court of Appeals had no authority to make an allowance for an attorney fee and expenses. The precedent receiving the most attention by counsel and the Court of Appeals is the decision of this court in the case ofCouncil of Village of Bedford v. State, ex rel. Thompson, Hine Flory,
"Where a taxpayer, on behalf of himself and other taxpayers of a village, has successfully prosecuted an action to recover money unlawfully paid by such village, and such money has been restored to the village, such action, while for money only, possesses certain equitable characteristics, and the trial court, out of the fund so created, in the exercise of equitable powers, may allow a reasonable fee to the attorneys of the taxpayer, payable out of the fund so created."
Since a fee was approved under those circumstances, afortiori the allowance must be affirmed in the instant case. There the defendant in the original action not only did not pay the money into court but divested himself of its possession and control by paying it to the village. Here the respondent still has in his hands ample funds which this action preserved by preventing him from returning them to owners of cement mixing motor conveyances who had paid the tax, and furthermore he has since received much greater sums from the same source. In actions of this sort there is no magic in the single fact that the fund created has or has not been paid into court. Indeed it would be an alarming doctrine and a mark of inexplicable impotency for a court exercising equitable powers to hold that in such a case its jurisdiction over a litigant *593 vests the court with no control over such funds within the possession and control of the litigant.
This court approves and follows the principle announced in the Bedford case, supra, and affirms the judgment of the Court of Appeals in the present controversy.
Judgment affirmed.
DAY, ZIMMERMAN, MATTHIAS and HART, JJ., concur.
MYERS, J., dissents.
Dissenting Opinion
While there is no question of the meritorious services rendered by relator, I cannot concur in the judgment for the reason that the court here has no jurisdiction of any particular fund. Funds collected by respondent during the 1937-1938 biennium were all disbursed and expended according to law. The only way such a claim may be paid out of money collected in a subsequent biennium is by an appropriate act of the Legislature.