
    Brundige v. The Village of Ashley et al.
    
      Injunction by taxpayer — In village where no solictor — Sections 1777, 1778 and 1779. Rev. Stat. — Plaintiff not entitled to compensation for attorney, when.
    
    In an action brought by a. taxpayer under sections 1777, 1778 and 1779, Revised Statutes, where a village has no solicitor, the plaintiff is not entitled to have included in the costs allowed to him, compensation to his attorney.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Delaware county.
    The incorporated village of Ashley, in Delaware county, acting by its officers, improved High street in that village under the act of January 19, 1893, entitled “an act to authorize the village council of the incorporated village of- Ashley, Delaware county, to issue bonds for the purpose of street improvement.”
    The street having been improved under the contract, bonds were issued and sold and a levy made upon the taxable property of the village to pay such bonds as were about to mature, as well as the interest upon the whole issue of bonds.
    Thereupon the plaintiff in error, a taxpayer, filed a petition on behalf of himself and the said village against the treasurer of the county, the county auditor, the village, the mayor, and the clerk, averring that said act was unconstitutional, that the issue of said bonds and all of the proceedings for the improvement of said street were unauthorized; that said village had not then a city solicitor .and no. one was authorized to act for it as its solicitor, and that the proceedings under said act for the improvement of said street were an abuse of the corporate powers of said village, and prayed that the levying and collection of all taxes for that purpose be enjoined, and for all relief equitable and right in the premises.
    The Court of Common Pleas awarded the relief prayed for, and made the temporary injunction perpetual, but added to the judgment entry the following:
    “And the court being of the opinion that this action is not maintainable under sections 1777 and 1778, but that it is maintainable under sections 5848, 5849, etc., the court refuses on application to allow as part of the costs herein attorney fees to plaintiff’s counsel, and, therefore, rules that nó attorney fees can be taxed as costs in the case.”
    The plaintiff excepted to the refusal of the court to allow attorney’s fees to be taxed in the costs, and took the case to the Circuit Court upon that question. The Circuit Court affirmed the Common Pleas. Thereupon he filed his petition in error in this court, seeking to reverse the judgments of the lower courts as to that question.
    
      F. M. Marriott, for plaintiff in error.
    
      J. S. J ones & Sons, for defendants in error.
   By this Court :

Conceding for the purposes of this case that the proceeding in the Court of Common Pleas was under and by virtue o'f sections 1777 and 1778 , Revised Statutes, the question arises as to whether a reasonable compensation to his attorney should be included in the costs allowed to the plaintiff under section 1779, when the municipality had no solicitor to be first requested to bring the action, as provided in said section 1778.

The question must be answered in the negative, for the reason that the provision for including such compensation for the attorney is authorized only when the solicitor has been first requested to bring the action, and has refused to do so.

If there is a solicitor and no such request is made upon him, there can be no compensation for the attorney included in the costs allowed to plaintiff, and if there is no solicitor the same result must follow, because it is the request and refusal that warrants the allowance of such fees.

The fact that there is no such solicitor does not have the legal effect to make it unnecessary to first make such request. The plaintiff knew before he began his action that there was no solicitor, and he began the action at his peril. He won his case, but he cannot be allowed to draw money from the public treasury to pay his counsel in the absence of a statute expressly authorizing him to do so. It has often been held by this court that money cannot be drawn out of the public treasury unless authorized by statute. Debolt v. Trustees, 7 Ohio St., 237; Anderson v. Commissioners, 25 Ohio St., 13; Strawn v. Commissioners, 47 Ohio St., 404; Clark v. Commissioners, 58 Ohio St., 107, and section 5, article 10 of the constitution.

It was held by this court in the unreported case of Kissel v. The Village of Columbus Grove, 53 Ohio St., 650, that compensation to his attorney could not be included when the costs allowed to the plaintiff in an action under said sections 1777, 1778, and 1779, where the village had no solicitor.

If it is desirable that compensation to the plaintiff’s attorney should be included in the costs allowed to the plaintiff in cases where there is no solicitor, the general assembly should so provide by statute, but in the absence of such provision in the statute, no such compensation can be allowed.

Judgment affirmed.  