Billington v. Cotner

• Decision Date: 02 January 1974
• Docket Number: No. 73-180,73-180
• Citation: Billington v. Cotner, 37 Ohio St.2d 17, 305 N.E.2d 805, 66 O.O.2d 9 (Ohio 1974)
• Parties: , 66 O.O.2d 9 BILLINGTON, Appellee, v. COTNER et al., Appellants.
• Court: Ohio Supreme Court

Page 17

37 Ohio St.2d 17

305 N.E.2d 805, 66 O.O.2d 9

BILLINGTON, Appellee, v.COTNER et al., Appellants.

No. 73-180.

Supreme Court of Ohio.

Jan. 2, 1974.

Syllabus by the Court

1.Although a prerequisite to the allowance of attorney fees in a taxpayer's action is the bestowal of a benefit upon the public through the efforts of the taxpayer, the benefit need not be monetary and a fund need not be created or preserved.The benefit obtained by the public through the action of the taxpayer may be of an intangible character, such as the prevention of illegal government activity.

2.Where a taxpayer has instituted suit pursuant to R.C. 733.59 and the trial court has ruled adversely to him, the failure of the taxpayer to either prosecute or attempt to join in an appeal, which appeal ultimately results in judgment being ordered finally in his favor, may be considered by the trial court in the exercise of its discretion concerning an allowance of attorney fees.

After refusal of the Cleveland Director of Law to bring suit, appellee instituted a taxpayer's action in the Court of Common Pleas, seeking to enjoin the Clerk of Council and others from expending municipal funds with regard to the printing and mailing of copies of a proposed amendment to the Cleveland City Charter.The trial court denied the relief sought by appellee, and copies of the proposed charter amendment were sent to each elector of the city of Cleveland.

The decision of the trial court was subsequently appealed by the city.Appellee neither prosecuted nor made any effort to join in the appeal.Ultimately, this court, in Billington v. Cotner(1971), 25 Ohio St.2d 140, 267 N.E.2d 410, held that appellee was entitled to the relief prayed for in his action.

Thereafter, appellee applied to the Court of Common Pleas for an allowance of attorney fees, pursuant to R.C. 733.61 and the Cleveland City Charter, Section 92.^*Costs were allowed appellee, but his application for fees was denied.Appellee appealed to the Court of Appeals, which reversed the judgment of the trial court(32 Ohio App.2d 277, 290 N.E.2d 862), determining that the trial judge had not exercised his discretion in denying the allowance of fees.The Court of Appeals remanded the case'to allow the trial judge to exercise his discretion in the matter of fees free from the notion that he had no power to act because plaintiff did not prosecute the appeal.'

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Fred J. Ball, Cleveland, for appellee.

Herbert, R. Whiting, Director of Law, and Robert McCarthy, Cleveland, for appellants.

HERBERT, Justice.

Under R.C. 733.59 and 433.61, if a taxpayer brings suit to enjoin the misapplication of municipal funds, after the city solicitor has refused to bring the action upon being requested to do so, attorney fees may be allowed to the taxpayer and taxed as costs, provided judgment is finally ordered in his favor.The allowance of fees is permissive and is a matter which lies entirely within the sound discretion of the trial judge.SeeState, ex rel. Scott, v. Masterson(1962), 173 Ohio St. 402, 406, 183 N.E.2d 376;Howard v. Cleveland (Ohio App., 1964), 95 Ohio Law Abst. 304, 200 N.E.2d 349.

Considerations involving the allowance of attorney fees in taxpayers' actions were set forth in State, ex rel. White, v. Cleveland(1973), 34 Ohio St.2d 37, 295 N.E.2d 665.In paragraph three of the syllabus in that case, the court held:

'Where the statutory requirements necessary to maintain a taxpayer's action, pursuant to R.C. 733.59 are met or waived, and the action has been brought on behalf of the public and resulted in a public benefit, the equity of the case demands that the trial court exercise its discretion in considering the allowance of attorney fees to the successful taxpayers.'

Appellants assert that since appellee failed to create or preserve a fund in his action, attorney fees should be denied because a benefit has not been bestowed upon the public by virtue of the efforts of the taxpayer.This court has held that it is an abuse of discretion for the trial court to allow attorney fees in a taxpayer's...