Summary
In White, this court had before it R.C. 733.61 which permits a court hearing such taxpayer's action to exercise discretion as to the allowance of attorney fees where the requirements of that statute are also met. White only supports the exercise of discretion as to an allowance of attorney fees pursuant to the requirements of R.C. 733.59 and 733.61.
Summary of this case from State ex Rel. Gravill v. FuerstOpinion
No. 72-628
Decided April 25, 1973.
Taxpayer's action — R.C. 733.59 — Municipal corporations — Public duty of municipal officer — Responsibility of city attorney — Mandamus action by taxpayer — R.C. 733.58 — Taxpayer's request to solicitor to sue, excused, when — Taxpayer acts for municipality and bestows public benefit, when — R.C. 149.43 — Availability of public records — Allowance of attorney fees — Discretion of court — R.C. 733.61.
1. Where a statute establishes a public right and imposes upon a public officer a duty, which such officer fails or refuses to perform, any taxpayer, who, in his own name, undertakes to compel performance of such duty, regardless of personal or private motive or advantage, and successfully maintains a mandamus action, pursuant to R.C. 733.59, acts on behalf of the municipality and bestows a public benefit.
2. Where a taxpayer requests the Law Director of a municipality to advise the Commissioner of the Division of Building to permit the inspection and copying of public records, as required by R.C. 149.43, and the Law Director refuses, relying upon an alleged policy of the municipality, it is clear that a written request upon the Law Director to maintain a mandamus action against the commissioner, pursuant to R.C. 733.58, would be futile and unavailing, and such request, required by R.C. 733.59, is excused. ( State, ex rel. Nimon, v. Springdale, 6 Ohio St.2d 1, approved and followed.)
3. 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.
APPEAL from the Court of Appeals for Cuyahoga County.
This action is before the court upon appeal from the judgment of the Court of Appeals, reversing that portion of the judgment of the Court of Common Pleas disallowing attorney fees to appellees in their successful mandamus action.
Appellees herein filed an action in mandamus in the Court of Common Pleas, as taxpayers and on behalf of all city taxpayers, seeking to order the Commissioner of the Division of Building of the city of Cleveland to provide appellees, at their costs, certain building and architectural plans for copying. Prior to the commencement of the action, appellees had served a written notice upon the Law Director of the city of Cleveland, requesting him to rescind certain building permits which had been issued by the building commissioner and to advise the commissioner to permit the making of copies of the plans filed with such permits, at cost to the appellees.
The Law Director, relying upon a policy of the appellant city to refuse to provide copies of plans filed with the commissioner in support of applications for building permits where the applicant-builder withholds consent, stated, in reply to appellees' request, that he would not advise the commissioner to make copies available at cost. He stated further that the public records could not be copied and that it would take a writ of mandamus against the city to obtain copies.
Without first filing a written request with the Law Director of the city of Cleveland to file a mandamus action to compel enforcement of taxpayers' rights under R.C. 149.43, appellees, in reliance upon the Law Director's statement, proceeded to file such action against the city of Cleveland and its building commissioner.
The mandamus action was successful and the writ issued. The city did not appeal.
Subsequently, the taxpayers filed an application for an allowance of their expenses, including a reasonable attorney fee, as part of costs.
The Court of Common Pleas found that the action involved a claim by the appellees of interference by the appellants with the private rights of the appellees and was filed primarily for the benefit of the appellees' own private interests, one from which the public obtained no benefit; and that, therefore, the action constituted the utilization of a remedy in an individual rather than in a representative capacity. Upon the basis of Brauer v. Cleveland (1966), 7 Ohio St.2d 94, the court held that appellees were not entitled to a judgment for their attorney fees, and denied the request.
Upon appeal, the Court of Appeals determined that the appellant city had, in denying the inspection and copying of public records where the building contractor advised the Division of Building not to permit same, violated R.C. 149.43 as to the rights of all who ask for inspection and copies of such records. It was the opinion of the court that, to the extent that the present action by appellees brought about judicial disapproval of the appellants' policy of violating R.C. 149.43 and stopped future violations, the issuance of the writ of mandamus resulted in a public benefit. The Court of Appeals reversed the judgment of the trial court on the one issue of attorney fees, affirmed the judgment as to all other issues, and remanded the cause to the Court of Common Pleas, ordering the exercise of that court's discretion on the one issue.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Rudd, Miller, Sheerer Lybarger and Mr. Charles R. Miller, for appellees.
Mr. Herbert Whiting, director of law, and Mr. Howard H. Fishkin, for appellants.
Appellants submit two propositions of law, either of which, if accepted by this court, would bar the exercise of the trial court's discretion in considering the award of attorney fees.
Appellants' first proposition of law urges that the present action is not a taxpayer's action within the meaning of R.C. 733.59.
This court has defined the word "taxpayer," as used in R.C. 733.59, in State, ex rel. Nimon, v. Springdale (1966), 6 Ohio St.2d 1. Paragraph two of the syllabus states:
"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."
Justice Schneider, speaking for the majority, explained that the rule applicable to so-called taxpayer's actions, derived from a long line of cases, has been repeatedly recognized in Ohio, citing the statement 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 * * *."
In the present action, it is clear that R.C. 149.43 establishes a public right to the inspection and copying of public records and imposes upon municipal corporations the mandatory duty to permit same.
It is also clear that the appellant city of Cleveland refused to comply with that mandatory duty, forcing appellees to maintain an action in mandamus to compel the enforcement of such duty. In so doing, the appellees, regardless of any private or personal benefit, have enforced a right of action on behalf of and for the benefit of the general public. This action is, therefore, properly categorized as a "taxpayer's action."
Appellants' second proposition of law is that the appellees have not, as a matter of law, met the statutory requirements which would entitle them to attorney fees.
State, ex rel. Nimon, v. Springdale, supra, in addition to defining "taxpayer" and stating the conditions necessary to maintain an action in that capacity, pursuant to R. C. 733.59, also established, in paragraph two of the syllabus, that persons meeting the qualifications of that section are also subject to the conditions imposed by it, unless waived.
R.C. 733.59 sets forth the prerequisites necessary to maintain a taxpayer's action, as follows:
"If the solicitor fails, upon the written request of any taxpayer of such municipal corporation, to make any application provided for in Sections 733.56 to 733.58, inclusive, of the Revised Code, such taxpayer may institute suit in his own name * * *."
Appellants argue that the appellees failed to make a written request that the appellant Law Director maintain a mandamus action against the building commissioner.
The evidence is undisputed that the appellees made a written request of the Law Director to both rescind certain building permits and to advise the Division of Building to permit the inspection and copying of records. The Law Director's response to this request was a complete refusal to either rescind the building permits or to advise the Division of Building to allow inspection or copying of records. He further advised that a mandamus action was necessary to obtain inspection of the records.
The remaining question for this court to consider is whether or not this response constituted a waiver of the notice requirement of R.C. 733.59.
Paragraph three of the syllabus in State, ex rel. Nimon, v. Springdale, supra, reads:
"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."
In reaching this result, Justice Schneider, at page 6, stated:
"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."
It is clear that the Law Director's refusal and statement that a writ of mandamus was necessary to obtain inspection and copies of the records in question foreclosed any probability that the appellant city might consent to become a party plaintiff in a mandamus action against the Division of Building. The conditions imposed by R.C. 733.59 were, therefore, waived.
R.C. 733.61, Section 92 of the Cleveland City Charter, and this court's opinion in Brauer v. Cleveland, supra ( 7 Ohio St.2d 94), all permit the trial court to exercise its discretion in regard to the allowance of attorney fees where the statutory requirements are met or waived, the action has been brought on behalf of the public and resulted in a public benefit, and the equity of the case demands it. We hold that such requirements have been met in the present case.
Therefore, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.