State ex rel. Masterson v. Ohio State Racing Commission, 33984

• Decision Date: 15 December 1954
• Docket Number: No. 33984,33984
• Citation: 123 N.E.2d 1,55 O.O. 215,162 Ohio St. 366
• Parties: , 55 O.O. 215 The STATE ex rel. MASTERSON, a Taxpayer, Appellant, v. OHIO STATE RACING COMMISSION et al., Appellees.
• Court: Ohio Supreme Court

Page 366

162 Ohio St. 366

123 N.E.2d 1, 55 O.O. 215

The STATE ex rel. MASTERSON, a Taxpayer, Appellant, v. OHIO STATE RACING COMMISSION et al., Appellees.

No. 33984.

Supreme Court of Ohio.

Dec. 15, 1954.

Syllabus by the Court.

1. In the absence of statutory authority, a taxpayer lacks legal capacity to institute an action to enjoin the expenditure of public funds unless he has some special interest therein by reason of which his own property rights are placed in jeopardy.

2. Under the provisions of Section 1079-10, General Code (Section 3769.10, Revised Code), a taxpayer may not maintain an action to enjoin the expenditure of funds by the Ohio State Racing Commission without alleging and proving a special interest therein.

In the Court of Common Pleas the relator, solely as a taxpayer, instituted this action for the purpose of obtaining an injunction to restrain the respondent Ohio State Racing Commission from expending funds of the state of Ohio or issuing permits for the conducting of horse racing in this state. Additional parties respondent are the Auditor of State and the Treasurer of State.

To the relator's petition the respondents filed a demurrer on the two grounds that the relator taxpayer lacks the legal capacity to sue and that there is a defect of parties respondent. The trial court sustained the demurrer on the first ground, namely, that the relator lacks the legal capacity to sue, Ohio App., 115 N.E.2d 474.

Then the relator filed an amended petition. To this the respondents filed a motion to strike the amended petition from the files for the reason that it does not constitute a substantial amendment to the original petition. This motion was sustained by the trial court and judgment was rendered for the respondents.

On an appeal by the relator to the Court of Appeals on questions of law, the judgment of the trial court was affirmed on the sole narrow ground that the relator, as a taxpayer, lacks the legal capacity to sue.

The cause is in this court for a review by reason of the allowance of the relator's appeal.

George J. McMonagle, Cleveland, Robert E. Sweeney, Westlake, Edward J. Beran, Cleveland, William E. Mahon, Bedford, and William J. O'Neill, Cleveland, for appellant.

C. William O'Neill, Atty. Gen., and Hugh A. Sherer, Columbus, for appellees.

WEYGANDT, Chief Justice.

The sole question before this court for review is whether the lower courts were in error in holding that the relator taxpayer is without legal capacity to sue.

At the threshold of this discussion it is important to observe that the relator taxpayer makes no claim that he is authorized by statute to institute this action.

The question then is reduced to whether the relator possesses such authority under the principles of the common law. The general rule in summarized as follows in 39 Ohio Jurisprudence, 2, Section 2:

'Even in the absence of legislation, a taxpayer has a right to call upon a court of equity to interfere to prevent the consumation of a wrong such as occurs when public officers attempt to make an illegal expenditure of public money, or to create an illegal debt, which he, in common with other property holders of the taxing district, may otherwise be compelled to pay.'

It is equally fundamental that at common law and apart from statute, a taxpayer can not bring an action to prevent the carrying out of a public contract or the expenditure of public funds unless he had some special interest therein by reason of which his own property rights are put in jeopardy. In other words, private citizens may not restrain official acts when they fail to allege and prove...