
    No. 548
    KEIL v. OHIO BELL TELEPHONE CO.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1528.
    Decided Feb. 10, 1927.
    27. ACTION — 887. Parties — A suit cannot be maintained against a public utility company to recover money (an excess over the lawful rate) in favor of plaintiff on behalf of himself and other patrons, upon the ground that there is a common or joint interest in the funds so charged and collected by the company.
    First Publication of this Opinion
   ALLREAD, J.

George W. Keil brought suit against the Ohio Bell Telephone Co. to recover money that the company had charged and collected from him and other users of telephones, on the ground that the amount charged was an excess over the lawful rate. He undertook to bring the action in equity in favor of himself and all other patrons, similarly situated, in the City of Columbus.

The Court of Common Pleas sustained a motion to dismiss the petition for lack of jurisdiction.

We have reached the conclusion that the case of Trustees v. Thoman, 51 OS. 285, is decisive. The attitude of the plaintiff tax payer in that case is similar to the position of the plaintiff in the ease at bar.

Attorneys — B. F. Levinson of Columbus and Kenneth Little of Troy, for Keil; Henderson & Burr and Sherman B. Randall of Columbus; for Ohio Bell Telephone Co.

“A suit cannot be maintained by one tax payer on behalf of himself and others, to recover taxes, alleged to have been illegally assessed, on the ground that the taxes were involuntarily paid by each. In such case each must bring the action on his own behalf. A suit to recover back is quite different in the grounds upon which a recovery can be had, from a suit to enjoin a tax. In the latter case a judgment may be rendered in favor of all as a class upon substantially the same case, and terminate the litigation. In an action to recover money, the judgment must not only be for each according to the amount due him, but must depend upon whether each according to the amount due him, but must depend upon whether each as an individual paid voluntarily or involuntarily.”

Judgment affirmed.

Ferneding and Kunkle, JJ., concur.

Note: This case has been carried to the Supreme Court, dock. 3-25-27, 5 Abs. 188; mo. cer. av., 5 Abs. 315.  