Opinion
No. 28461
Decided May 13, 1942.
Municipal corporations — Section 4314, General Code — Taxpayer's suit barred, when — Question might have been litigated in previous suit by city solicitor.
The right of a taxpayer to bring a suit on behalf of a municipality under Section 4314, General Code, is barred when the question sought to be raised is one that might properly have been raised and litigated in a previous suit brought by the city solicitor and litigated to final judgment.
IN MANDAMUS.
This is an action in mandamus to require the city of Lakewood to restore $70,000 to the water fund from the general fund of the city, and to pay from the general fund to the water fund a further amount equal to interest at the rate of six per cent per annum on $56,000 from January 15, 1933, and on $14,000 from January 15, 1935.
Pursuant to a city ordinance duly adopted December 29, 1933, there was transferred from the water fund to the general fund, the sum of $56,000, to be returned as soon as possible after January 1, 1934. This sum was restored to the water fund on April 23, 1935, together with interest at one per cent per annum, amounting to $733.37, which was the amount of interest received on this fund by the city from the city depository.
On December 17, 1934, the council of the city of Lakewood requested the law director to bring an action in the Common Pleas Court for authority to transfer $70,000 from the city's water fund to the general fund. Such suit was instituted, the court granted the application, and the transfer was made.
Subsequent to this transfer the present relator, late in 1935, requested the law director to bring an action to require the return of this sum of $70,000 to the water fund. The law director complied with the request, brought the action in the Common Pleas Court, which action, by successive appeals, came to this court and was decided on April 21, 1937. (See City of Lakewood v. Rees, 132 Ohio St. 399, 8 N.E.2d 250.) This court ordered the moneys, theretofore transferred from the water fund, to be restored to that fund. On April 23, 1941, after the instant action was commenced, the sum of $70,000 was restored to the water fund from the general fund to comply with the order of the court.
On and after December 31, 1933, all moneys coming into the water fund, whether to be used for operating and other purposes of the water fund, or amounting to surplus in the water fund, were paid into the city treasury, credited to the water fund and placed in the city depositories which paid interest in various amounts from July 1933 to July 1, 1937, after which no interest was paid by the depositories. From April 21, 1937, the date of the court order, until July 1, 1937, a period of 71 days, the rate of interest paid the city on deposits of money belonging to the water fund was one-sixty-fourth of one per cent per annum.
This present action was instituted to compel the city of Lakewood to carry out the order which had been made by this court in the former action of City of Lakewood v. Rees, supra.
Mr. Hugh McNamee and Mrs. David J. Brophy, for relator.
Mr. Charles F. Ross, for respondents.
Since this action was filed, all the moneys diverted from the water fund to the general fund of the defendant city have been restored and the order of the court made in the case of City of Lakewood v. Rees, supra, has been complied with.
This action has, therefore, become moot except as to the question of interest on the funds so diverted while they were held in the general fund. The question remaining to be determined in this action is whether the city is liable to the water fund for such interest.
The same issue here presented was before this court in the case of City of Lakewood v. Rees, supra. The jurisdiction of the court extended to interest on the fund, if any was due, as it did to the status of the fund itself. If any interest was recoverable it was due and owing up to the time of the decree of the court. That case, which was an action in rem, is res judicata not only as to all issues decided, but as to all issues which the court might have decided and as to all persons having an interest in the subject-matter. There was no decree for interest and that determination was final.
With respect to the application of the doctrine of res judicata, 28 Ohio Jurisprudence, 1068, Section 658, says:
"The right of a taxpayer to bring a suit on behalf of a municipality under Section 4314, General Code, is barred when the question desired to be raised is one that might properly have been raised and litigated in a previous suit brought by the city solicitor, or by another taxpayer, and carried to a final judgment * * *."
The subject-matter of the action in the case of City of Lakewood v. Rees, supra, was the determination of the status of the fund in question and the judgment of the court in that respect was conclusive. The binding effect of a judgment in rem against the whole world prevails as to the res or status within the jurisdiction of the court. 31 American Jurisprudence, 102, Section 450.
Having reached this conclusion, this court considers it dispositive of the other questions made in the record. The writ is denied.
Writ denied.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.