State, Ex Rel., v. Nolte
| Decision Date | 16 December 1924 |
| Docket Number | 18551 |
| Citation | 111 Ohio St. 486,146 N.E. 51 |
| Parties | The State, Ex Rel. Nead, A Taxpayer, v. Nolte, Mayor. |
| Court | Ohio Supreme Court |
Mandamus - Remedy to compel mayor to pay fees into treasury - Mandamus not abated by pending action to collect fees - Mayor entitled to fees in state taxes - Section 4270, General Code.
1. Where there is a controversy between a municipality and the mayor thereof over the title to certain fees collected by the mayor, it being admitted by the mayor that the fees were collected and retained by him, and it being admitted by the municipality that the identical fees so collected and retained have been kept intact, and no other issue of fact being made, mandamus at the suit of the city against the mayor to order the payment of said moneys into the city treasury is an appropriate remedy.
2. Where a suit is brought by a city, on the relation of its solicitor, to recover a Judgment against the mayor thereof and subsequently thereto a taxpayer makes written request upon the city solicitor to bring an action in mandamus against the mayor to compel the payment of the identical moneys for which judgment is sought in the former action, and the city solicitor refuses to bring such mandamus suit, and the taxpayer thereupon brings suit In mandamus upon his own relation, and the mayor files no answer in the action at law but joins issue in the action in mandamus, in which he pleads as a defense the pendency of the action at law, the special plea of abatement should be overruled.
3. Section 4270, General Code, as amended (108 0. L., pt. 2, p 1208), imposes no duty upon the mayor of a municipality to pay into the city treasury the fees taxed in favor of such mayor In the hearing of state cases.
This action originated in the court of common pleas of Hamilton county, Ohio, as a taxpayer's suit, to require the defendant, the mayor of Norwood, to pay into the city treasury certain fees theretofore collected by him in the trial of criminal cases before him for violation of the laws of the state. The record does not disclose whether the offenses were committed within the limits of the city of Norwood, or outside of the city, and within the limits of Hamilton county. It is presumed that some of them were committed within the city and others outside of the city within the county. Before beginning the action, the taxpayer under date of September 24, 1923, made written request, under Section 4314, General Code, upon the city solicitor to institute a proceeding in mandamus, which request was refused. On September 10, 1923, the taxpayer had made a previous written request upon the city solicitor that an action be brought to recover the money, and for its payment into the city treasury; that letter making no mention of the form of the action. On September 24, 1923, the same date as the second communication of the taxpayer, a suit was begun by the city solicitor, which action was apparently in form an action to recover money on the ground of conversion, pursuant to a report of the state bureau of accounting, stating that the moneys were withheld from the city treasury, but making no "finding for recovery," under the provisions of Section 286, General Code. Whether the action brought by the city solicitor was brought after the receipt of the letter of September 24, or before its receipt, does not appear. The taxpayer and his attorney were evidently dissatisfied with that form of action, and on the 26th of September filed a suit in mandamus. There being no "finding for recovery" in the report of the bureau of accounting, and the mayor never having made any use of the money, but having retained, either in the iron safe in his office or in a safety deposit box in a Cincinnati bank, the identical moneys collected by him as fees, there was not a technical conversion. The answer makes a defense that there is a former suit pending, and for further defense the mayor claims to be entitled to the fees by virtue of the statutes in such case made and provided.
The first suit brought has lain dormant, no answer ever having been filed. The mandamus suit promptly proceeded to trial, was heard before two of the judges of the court of common pleas, and judgment was rendered in favor of the relator. Upon prosecution of error to the Court of Appeals that judgment was reversed and final judgment entered in favor of the defendant. The cause was thereupon admitted to this court, upon allowance of motion to certify the record.
Mr. Allen C. Roudebush, for plaintiff in error.
Mr. Charles S. Bell, prosecuting attorney, and Mr. Louis H. Capelle, for defendant in error.
Mr. C. C. Crabbe, attorney general; Mr. Chas. M. Earhart and Mr. Arthur H. Wicks, amici curiae.
This record presents to this court two questions for determination: First, the right of the taxpayer to maintain a proceeding in mandamus; second, the right of the mayor of the city of Norwood to retain the statutory fees taxed in his favor in state criminal cases. These questions will be discussed in the order named.
The first of these questions has two branches: (a) Does mandamus lie, or is there an adequate remedy at law? (b) Does the pending suit brought by the city solicitor, which is still pending, abate the suit in mandamus brought by the taxpayer? These questions will also be disposed of in the order named.
The evidence offered and received at the trial contains no dispute upon any point, and a review of this record by this court does not in any sense involve a weighing of evidence. The mayor had kept all fees taxed in his favor separate and distinct from any other moneys, and from time to time had deposited the same in a private box in a Cincinnati bank, under an agreement between the mayor and the bank that the same were held awaiting a determination of the title to the same. That deposit still awaits a final determination of this controversy. This portion of the case therefore turns upon the proper construction of Section 4313, General Code:
It being sought by mandamus to compel the mayor to pay the moneys held by him into the city treasury, and it being claimed that this is a duty expressly enjoined upon him by statute, and there being practically no dispute about the facts, but, to the contrary, the whole controversy relating to a construction of the statutes of Ohio, a clear case is presented for the exercise of equity jurisdiction. Section 12283, General Code, provides:
"Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station."
The identical moneys collected by the mayor are deposited in a safety deposit box in a bank, and, if the money belongs to the city, he should be ordered to make the payment. This conclusion is in perfect harmony with the decision of this court in the case of State v. Staley, 38 Ohio St. 259.
The mayor should not seriously complain of the action of the courts below on this point, because any action at law to recover the moneys and to have them paid into the treasury must be predicated upon a claim of conversion, and any adverse judgment against him in an action at law would necessarily place upon him the stigma of having converted moneys belonging to the city. The present form of action, as instituted, gives him credit for honesty of purpose, and only submits for determination the construction of a statute.
Let us next inquire whether this controversy is abated by the pendency of the suit for the recovery of the money, brought upon the relation of the city solicitor. By virtue of Section 11309, General Code, in paragraph 4 thereof, it is provided that it shall be a ground for demurrer to a petition "that there is another action pending between the same parties for the same cause." And by virtue of Section 11311, when such ground of demurrer does not appear on the face of the petition, "the objection may be taken by answer." The objection in the instant case did not appear on the face of the petition, but is pleaded in the answer, thereby presenting the question for determination.
At common law the pendency of another action was ground for abatement, and the Ohio statutes are but declaratory of the common law. Although the statutes above referred to have been a part of our Code of Procedure for a long period of time very little light has been thrown upon those provisions by the decisions of the Ohio courts. The diligence of counsel has resulted in no citation of authorities. In the case of Spence v. Union Cent. Life Ins. Co., 40 Ohio St. 517, it was decided that the pendency of an action on a promissory note secured by a mortgage, with a prayer that the amount due on the note be found, and for decree of foreclosure and sale, but in which no personal judgment is demanded, is not a bar to another action upon the note against the maker for personal judgment. One of the actions there involved was a suit in equity; the other, one at law. In the absence of interpretation by this court of the Ohio statute, and the...
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