State ex rel. Dickman v. Defenbacher

• Decision Date: 11 May 1949
• Docket Number: 31695.
• Citation: 151 Ohio St. 391,86 N.E.2d 5
• Parties: STATE ex rel. DICKMAN v. DEFENBACHER et al.
• Court: Ohio Supreme Court

86 N.E.2d 5

151 Ohio St. 391

STATE ex rel. DICKMAN v. DEFENBACHER et al.

No. 31695.

Supreme Court of Ohio

May 11, 1949

Appeal from Court of Appeals, Franklin County.

The 97th General Assembly passed a general appropriations act for the biennium, 1947-1948, which included appropriations to be paid to various veterans organizations and associations in Ohio, such as the American Legion and the Veterans of Foreign Wars.

Dickman an Ohio taxpayer and veteran of World War II, on his own behalf and for the benefit of the state of Ohio, brought an action in the Court of Common Pleas of Franklin county, in which he sought to restrain the state director of finance the state auditor and the state treasurer from proceeding to disburse the appropriated monies, on the ground that such disbursement would constitute an outlay of public funds for private purposes in violation of the state constitution and particularly Section 4, Article VIII thereof.

The various veterans organizations affected were made parties to the litigation, and an answer was filed to the amended petition. The defendants then moved for judgment on the pleadings. Such motion was sustained by the trial court which subsequently rendered judgment for the defendants.

On an appeal on questions of law and fact, the Court of Appeals likewise rendered judgment for the defendants.

No restraining order was ever obtained by the plaintiff, and the amounts appropriated by the General Assembly were paid over to the various veterans organizations in accordance with the terms of the legislative enactment referred to.

A supplemental petition was filed by the plaintiff in the Court of Appeals, alleging the disbursement of the appropriated funds and asking that the recipients thereof be ordered to make restitution.

The cause is presently before this court for disposition on an appeal as of right.

Jerome Goldman and Albert M. Freiberg, Cincinnati, for appellant.

Herbert S. Duffy, Attorney General, Joseph F. Ford and Paul M Herbert, Columbus, for appellees.

PER CURIAM.

Originally the object of this action was to prevent the disbursement of state funds by state officials. No restraining order was ever secured and the money was paid over as authorized and directed by the appropriating body.

Some of the members of this court entertain the opinion that when the appropriated funds were disbursed, there being no order in existence to prevent the disbursement, the case became 'moot.'

Lending validity to this view is the case of Coke v. Shanks Aud., 218 Ky. 402, 291 S.W. 362, where an action was brought against the state auditor, state treasurer and others to enjoin the payment of certain claims which had arisen through the operations of the State Highway Commission. Payment was made during the pendency of an appeal. The Court of Appeals dismissed the appeal, notwithstanding the questions raised were of public importance and concerned acts of public officials, the court holding that the case was 'moot' because the events which had occurred made a decision unnecessary and created a condition wherein no actual relief could be afforded. But compare Moss v. Board of Education, 58 Ohio St. 354, 50 N.E. 921.

However, plaintiff places strong emphasis on his supplemental petition in which he asked that the recipients of the funds be ordered to repay them.

It is quite true that in certain instances a taxpayer may maintain an action to compel the restoration of public funds unlawfully diverted from the public treasury.

52 American Jurisprudence, 9, Section 13; Walker v. Village of Dillonvale, 82 Ohio St. 137, 92 N.E. 220, 19 Ann.Cas. 773.

But, as has already been observed, the present action originally was for the purpose of preventing designated state officials from distributing appropriated funds, and the prayer of the petition generally was confined to that object.

Being unsuccessful in obtaining what he demanded, the plaintiff later, in the identical case and on facts which developed after the commencement of the action, attempted to accomplish an entirely different thing, viz., the securing of an order directing the recipients of the funds to return them. By pursuing this course, plaintiff changed the character of his action from one of prevention as to named persons to one of compulsion as to other and different persons. This, we believe, was an unauthorized procedure; plaintiff's proper remedy, if he had one, was the bringing of a new action for the accomplishment of the result desired.

It is said in 41 American Jurisprudence, 477, Section 264, that 'the facts embodied in a supplemental complaint must relate to the cause of action set forth in the original complaint, and must be in aid thereof. An entirely new case cannot be introduced in...