Opinion
No. 31926
Decided March 29, 1950.
Municipal corporations — Suit by solicitor for injunction — Section 4311, General Code — Trial court may refuse to allow taxpayer to become party, when.
Where the solicitor of a municipal corporation has instituted a suit for an injunction under the provisions of Section 4311, General Code, at the request of a taxpayer, and the trial court finds that the solicitor is proceeding in good faith and with due diligence, the court is not in error in refusing to allow the taxpayer to become a party to the action.
CERTIFIED by the Court of Appeals for Hamilton county.
This action was instituted in the Court of Common Pleas by the solicitor of the city of Cincinnati, Ohio, on the written request of David L. Shannon, a citizen and taxpayer.
The purpose of the suit is to enjoin certain officials of the city from performing any of the administrative or financial functions required by the provisions of a certain ordinance relating to the repair of portions of streets formerly maintained at the expense of the Cincinnati Street Railway Company.
The defendants demurred to the petition.
Thereafter David L. Shannon, the taxpayer at whose instance the suit was instituted, filed a motion asking leave to become a party to the action.
The Court of Common Pleas found that the city solicitor was proceeding in good faith and with due diligence, and the taxpayer's motion was overruled. The demurrers to the petition were sustained and the petition was dismissed.
The taxpayer then filed a motion for a new trial. This was overruled.
The city solicitor did not comply with a request of the taxpayer to appeal from the judgment sustaining the demurrers and dismissing the action.
The taxpayer then filed a notice of appeal from the sustaining of the demurrers and from the overruling of his motion for leave to become a party.
In the Court of Appeals the defendants filed motions to dismiss the taxpayer's appeals. These motions were sustained.
The Court of Appeals then certified the record to this court on the ground that the judgment in the instant case is in conflict with that pronounced on the same question by the Court of Appeals of the Eighth Appellate District in the case of City of Lakewood v. Rees, 51 Ohio App. 490, 1 N.E.2d 953.
Mr. Henry M. Bruestle, city solicitor, and Mr. Robert J. White, for appellee city of Cincinnati.
Mr. Maurice W. Jacobs and Mr. J.B. Grause, Jr., for appellee city manager, director of public utilities, acting city auditor and city treasurer.
Messrs. Taft, Stettinius Hollister, for appellee Cincinnati Street Railway Company.
Mr. David L. Shannon, in propria persona.
In the instant case the Court of Appeals held that the trial court was not in error in refusing to permit the taxpayer to become a party. Was this correct?
Counsel on each side cite the case of City of Middletown v. City Commission of Middletown, 138 Ohio St. 596, 37 N.E.2d 609. In the first paragraph of the syllabus in that case a majority of this court held:
"Where the solicitor of a municipal corporation has instituted a suit for injunction under Section 4311, General Code, at the request of a taxpayer, and the court finds that such solicitor is not proceeding in good faith or with due diligence, the court has the inherent power to allow interested taxpayers to become intervening parties to the action, who thereupon have the same rights to plead, participate in the proceedings and appeal as if they had been original parties."
Obviously the contrasting feature in that case is the finding of the trial court that the city solicitor was not proceeding in good faith or with due diligence. In the instant case the trial court found, on the contrary, that the city solicitor "is proceeding in good faith and with due diligence."
Hence, in the instant case the lower courts were not in error unless a taxpayer enjoys an unqualified right to intervene and become a party in an action instituted at his request under favor of Section 4311, General Code. This court has not so held in the Middletown case, supra, and does not now so hold.
The taxpayer availed himself of the privilege conferred by the provisions of Section 4314, General Code. He made a request of the city solicitor who responded by complying with the request and instituting the desired suit. That the suit was not successful is, of course, no evidence that the solicitor did not proceed in good faith and with due diligence. Had the trial court found that the solicitor was not so proceeding, it could, in the exercise of sound judicial discretion, have permitted the taxpayer to become a party. But the taxpayer was not entitled to be made a party as a matter of right. Furthermore, the record discloses that the Court of Common Pleas instructed the taxpayer to be present at the hearing. He did attend, and the court invited him to participate in the presentation of the case. This invitation was accepted, and the taxpayer expressed his views at length.
Under the circumstances the Court of Appeals was not in error, and the judgment must be affirmed.
Judgment affirmed.
MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.