Opinion
No. 37264
Decided February 28, 1962.
Taxpayer's action — Section 733.59, Revised Code — A representative suit — Person not licensed to practice law — May not institute and prosecute action in representative capacity.
APPEAL from the Court of Appeals for Montgomery County.
By this proceeding in prohibition instituted in the Court of Appeals, the plaintiff, who is not an attorney admitted to the practice of law in Ohio, seeks a writ prohibiting the defendant Patterson, mayor of the city of Dayton, and the defendant McBride, judge of the Common Pleas Court of Montgomery County, from denying plaintiff his claimed right to appear in the Common Pleas Court and prosecute a taxpayer's suit on his own behalf and also on behalf of the city of Dayton and all other taxpayers similarly situated, without the aid of an attorney licensed to practice law in Ohio.
Plaintiff alleges in his petition that the defendant judge took judicial action and threatened prosecution of actions against plaintiff and promised punishment in severe form upon plaintiff, including confinement.
A motion was filed on behalf of defendants to require plaintiff to obtain counsel to represent him within ten days or suffer dismissal of the action and, further, for dismissal of the action for the reason that prohibition is not the proper remedy. A demurrer to the petition was also filed for the reason that the petition does not state facts which show a cause of action.
The Court of Appeals sustained both branches of the motion and also sustained the demurrer.
The cause is in this court on appeal as a matter of right, having originated in the Court of Appeals.
Mr. Walter Otto, in propria persona. Mr. Herbert S. Beane, city attorney, and Mr. Maurice J. Gilbert, for appellee R. William Patterson, Mayor.
Mr. Paul R. Young, prosecuting attorney, and Mr. William R. Coen, for appellee Robert L. McBride, Judge.
The defendants have filed a motion to dismiss the appeal for the reason that the plaintiff, appellant herein, has filed the appeal "and appears in this court acting for others without being a licensed attorney as required by law."
The question presented is whether a taxpayer, not a licensed attorney, may initiate and prosecute a taxpayer's suit on behalf of others without the services of a licensed attorney.
The plaintiff bases his claimed right to initiate and prosecute the action on Section 733.59, Revised Code, permitting suit by a taxpayer where the city solicitor fails to act. That section in no wise overrides or limits the provisions of Section 4705.01, Revised Code, prescribing who may practice law, or the rules of this court. In the suit in question here, plaintiff is attempting to act as an attorney on behalf of the city of Dayton and for taxpayers therein other than himself. Such action constitutes an attempt by one, not a licensed attorney, to practice law contrary to the provisions of Section 4705.01 and the rules of this court.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.