State ex rel. Nimon v. Village of Springdale

• Decision Date: 30 March 1966
• Docket Number: No. 39660,39660
• Citation: 215 N.E.2d 592,35 O.O.2d 1,6 Ohio St.2d 1
• Parties: , 35 O.O.2d 1 The STATE ex rel. NIMON et al., v. VILLAGE OF SPRINGDALE et al.
• Court: Ohio Supreme Court

Page 1

6 Ohio St.2d 1

215 N.E.2d 592, 35 O.O.2d 1

The STATE ex rel. NIMON et al., v. VILLAGE OF SPRINGDALE et al.

No. 39660.

Supreme Court of Ohio.

March 30, 1966.

Syllabus by the Court

1. Responsibility for the enforcement of a public right to the performance of a public duty by an officer of a municipal corporation is imposed in the first instance upon the solicitor by Section 733.58, Revised Code.

2. The word, 'taxpayer,' as used in Section 733:59, Revised Code, contemplates and includes any person who, in a private capacity as a citizen, elector, freeholder or taxpayer, volunteers to enforce a right of action on behalf of and for the benefit of the public, and any such person is subject to the conditions imposed by that section, unless waived.

3. Where a solicitor of a municipal corporation transmits a written opinion advising its council to refrain from acting on a pending matter and the council, in reliance upon the opinion, refrains from acting, a request upon the solicitor to institute suit to compel the council to act on the matter would be unavailing; the municipal corporation is deemed to have refused to grant consent to become a party plaintiff in any such suit; and a taxpayer's noncompliance with the condition of Section 733.59, Revised Code, requiring a written request to, and a failure by, the solicitor to institute suit, is excused.

4. An action in mandamus may be maintained by a taxpayer in a private capacity to enforce the right of the public to the performance of a public duty, as distinguished from a purely private right of the taxpayer to the performance of a duty imposed upon a public servant.

5. Where the charter of a municipal corporation provides for certain features of the initiative and referendum differing from the statutory provisions with relation thereto, and provides further that 'all other matters relating to the question of the exercise of the power of referendum shall be regulated by the provisions of the Revised Code of Ohio relating to referendum petitions,' but is silent with respect to language to be contained on a referendum petition or with respect to filing such petition with a village official prior to its circulation, such matters are controlled by Sections 731.32 and 731.33 of the Revised Code, and Section 731.41, Revised Code, is inapplicable.

The facts are stated in the opinion.

Donald H. Swain, Cincinnati, for relators.

Leroux & Weber and Paul J. Weber, Cincinnati, for respondents other than Robert W. Laughlin.

Hoover, Beall & Eichel and Augustus Beall III, Cincinnati, for respondent Robert W. Laughlin.

SCHNEIDER, Judge.

An agreed statement of facts and the evidence adduced by way of a deposition in this original action establishes that a referendum petition against ordinance No. 11-1965 of the village of Springdale, Ohio, was submitted to the village clerk, who, after determining the validity of the signatures thereon, transmitted the same to the council. That body held a public hearing on the petition pursuant to the village charter, but refused to transmit the same to the board of elections on the written advice of the village solicitor that the petition was invalid because the person filing the petition had failed 'before circulating such petition * * * (to) file a verified copy of the proposed ordinance * * * with * * * the village clerk,' as required by Section 731.32, Revised Code. ¹ It appears further that the referendum petition did not contain the 'notice' prescribed by Section 731.33, Revised Code, ² to be printed thereon in red.

Relators, each of whom is ' a resident freeholder and elector' of the village, and a circulator of the petition (omitted from the pleadings and the agreed statement of facts but conceded in the briefs of respondents) brought this action for a writ of mandamus to require the council to perform its duty under the charter and certify the petition to the Board of Elections of Hamilton County for submission to the electorate, without first requesting the solicitor to initiate the suit, as directed by Section 733.59, Revised Code. ³

Respondent Laughlin's motion for judgment on the pleadings raises the question, not of relators' capacity to sue, but of relators' right to maintain the action without showing compliance with that statute. Relators insist that they appear here as 'electors,' not as 'taxpayers,' and contend that, as 'beneficially interested' persons under Section 2731.02, Revised Code, ⁴ compliance with the former section is excused. With the latter conclusion the court agrees on the facts presented here, but for reasons which differ from those advanced by counsel.

In a long line of cases, ⁵ this court has repeatedly recognized the rule, as stated in 35 Ohio Jurisprudence 2d 426, Section 141, that 'where the question is one of public right and the object of the mandamus is to procure the enforcement of public duty, the people are regarded as the real party and the relator need not show that he has any * * * special interest in the result, since it is sufficient that he is interested as a citizen or taxpayer in having the laws executed and the duty in question enforced * * *.' Furthermore, an election, whether for officers or issues, is of the utmost public concern and any duty related thereto is properly characterized as public. Significantly, no case cited in the footnote involves (1) a municipal corporation; (2) Section 733.59, Revised Code, or any statute similar thereto; or (3) an extrastatutory demand upon, and refusal of, a county prosecutor, the Attorney General or other public legal officer to institute the suit.

Hence, relators' capacity to sue is clear. No extended review of the nature of their right is necessary in view of the excellent discussion by Judge Spear in Pierce v. Hagans, 79 Ohio St. 9, 86 N.E. 519, 36 L.R.A., N.S., 1, to which we refer with approval. Suffice it to say that the right is analogous to the equitable doctrine that, where the officers or directors of a corporation will not discharge their duty, the corporation is ordinarily the proper party to redress the wrong. If on the other hand, the directors are parties to the wrong, or will not bring the action, or both, the shareholders of the corporation may institute suit.

In this state, Sections 733.56 to 733.61, inclusive, Revised Code, codify this doctrine as to municipal corporations. Relators' rights are derived from the right of the municipal corporation, the enforcement of which is imposed in the first instance by Section 733.58, Revised Code, ⁶ upon the solicitor, who in fact represents the public, the real party in interest. ⁷ However, Section 733.59, Revised Code, places upon any one who would step forward and volunteer to protect the public the condition that he first make written request upon the solicitor to act. Only upon the failure of the latter pursuant to the request, may the private party 'institute suit in his own name, on behalf of the municipal corporation.' ⁸ It has been correctly pointed out that the statute is intended to prevent the municipal corporation from becoming a plaintiff in court without its consent. ⁹

That the word, 'taxpayer,' is employed in the statutes neither assists relators, nor defeats them, as will presently be shown. As resident freeholders and electors, they are necessarily taxpayers. Even if they were permitted to abjure their capacity as resident freeholders which they insist upon doing, it is difficult to see how they can escape the condition precedent in Section 733.59, Revised Code. An 'elector' necessarily is a domiciliary and it would be an extreme situation wherein such person might not in fact pay any tax, directly or indirectly, to the political subdivision of his domicile.

But the sounder view is that the word, 'taxpayer,' is to be construed generally, not literally. It includes, in fact, freeholders and tenants, both resident and nonresident, citizens and electors. It also includes a nonresident and nonfreeholder municipal income taxpayer. ¹⁰

The substantial question then comes down to this: Did the circumstances here show that it would have been unavailing to have made a request upon the solicitor. We think so. The solicitor formalized in writing his opinion that the referendum petition was invalid and presented that opinion to his employers, the council, who refused further action upon it. The lines were drawn, an unalterable stand was made and the gauntlet was thrown down. Thereafter, a request to bring suit in the face of those facts would not only have been in vain but the chain of events was equivalent to a refusal by the village of its consent to be made the party plaintiff and represented by its solicitor in a prospective legal action against its council. Therefore, these relators, on behalf of the public who are the municipal corporation, may maintain this action against the council without compliance with Section 733.59, Revised Code. The motion for judgment on the pleadings is, therefore, overruled.

On the merits, however, no clear duty on the part of council to take further action on the referendum has been shown and we find for the respondents.

In State ex rel. Mika, Dir. of Law v. Lemon, City Clerk, 170 Ohio St. 1, 161 N.E.2d 488, this court held that the requirement of Section 731.32, Revised Code, that the circulator of 'a referendum petition against any ordinance * * * shall before circulating such petition file a verified copy of the proposed ordinance * * * with the * * * village clerk,' is mandatory. An ordinance subject to the referendum is...