
    The State, ex rel. Teshera, v. Turgeon, Bldg. Commr., et al.
    (Decided January 14, 1929.)
    
      Mr. Sydney A. Davies, for plaintiff in error.
    
      Mr. John Price for defendant in error.
   Sullivan, P. J.

This cause is here on. error from the court of common pleas of Cuyahoga county, and it is a proceeding in mandamus filed by Ninette Teshera, plaintiff in error, against George J. Turgeon, as building commissioner of the village of Eocky Eiver, Ohio, and Leonard E. Weitz, mayor of the same village, and the writ sought is to compel the defendants in error to issue a building permit to erect a club residence, founded upon an application which was duly made and refused by each of the defendants in error in their official capacities. A demurrer to the petition for the writ was sustained by the court of common pleas on the ground that, under Sections 4313 and 4314, General Code, it was necessary to make application to the city solicitor of Eocky Eiver, and have said application refused, before the relator was entitled to sue in relief for the writ.

The question to be determined is whether the court erred in sustaining the demurrer, and in its other rulings of a similar nature, such as the overruling of a motion for a new trial and the granting of a motion to strike the petition from the files.

In the first place, it must be observed that this is not a taxpayer’s suit, and it does not appear anywhere in the record that the rights of the general public are in issue, but, on the contrary, it is clear and conclusive that it is only a private individual right that is projected from the allegations of the petition for the writ of mandamus. The sections above quoted specifically apply to the suit of a taxpayer of a corporation, and it is well settled that it is the plain purpose and intent of these statutes to prevent a municipal corporation from becoming a plaintiff in court without its consent, and it is just as obvious that these sections of the statute do not confer rights upon a taxpayer, but impose a restriction upon those rights by compelling the making of the application to the city solicitor, and where a refusal results, to have that fact form a basis for the right to commence a suit.

It has frequently been held that there is a distinction between the suit involving the rights of the taxpayers in general and one involving the prerogative of an individual, who seeks a right from which he has been denied. It is a well-settled proposition of law that, in the absence of positive statutory restriction, every person with a private grievance has a right to his day in court, and it is very questionable whether the Legislature has any power to restrict or limit this right by the imposition of the burden of first applying to the city solicitor of a municipal corporation and meeting with his refusal.

In the petition at bar it does not appear in any wise that there is any violation of the rights of the municipal corporation, and it is plainly apparent that the only right which appears in the case is the right of the relator to build a club house upon her own premises, and this is a status which is absolutely unrelated to the rights in general of the body politic.

Under Sections 12283 and 12302 of the General Code there is no limitation or qualification which confines the right to a writ of mandamus to a taxpayer whose application has been denied by the city 'solicitor and it .is admitted in the argument of the case that there is no authority in Ohio, where, a private right is sought to be enforced, which denies the right to sue for a writ of mandamus because of the failure to apply to the city solicitor and receive a refusal of the application.

Upon this point, by way of passing, it is well to note that, according to the petition, the municipal corporation, if not through its building commissioner, at least through its chief executive, upon application for a permit to construct, has refused the same, and, therefore, it follows as a matter of natural logic that it would be futile to apply to the counsel of the corporation to commence litigation that would be derogatory to, and in violation of, the official action of the building commissioner and the mayor of the village of Rocky River. Under such a status it seems anomalous and incongruous that the defendants in error should be seeking to deny the right of the relator to sue for this writ, in the face of the corporation’s refusal, through official authority, to grant the application of the relator for a permit to construct the club house in question. Therefore, in a sense at least, it may be said that, substantially speaking, the relator has applied, in a practical manner at least, to the corporation for the relief which he seeks, by suing out the writ of mandamus, and has. met with refusal.

The decisive point, however, upon which we decide that the relator has a right to sue, and that the action of the court below was error, is that the basis of the action is an individual and not a corporation right, and the distinction is of such substance that the courts have established the proposition that, where such a status exists, the right of the relator to his day in court in a mandamus proceeding is not susceptible of judicial denial, or legislative act.

From a review of the legislation upon this point we think onr reasoning is conclusive. Beginning the examination of the question from Sections 1777 and 1778 of the old Bevised Statutes of Ohio, we find that they were the progenitors of Sections 4313 and 4314, and these old sections, in Herrick v. City of Cleveland, 7 C. C., 470, 4 C. D., 684, have been under judicial consideration, and we quote therefrom to sustain our views upon this distinction in favor of the individual, where his right is personal, as against the contention of the corporation that he cannot go forward without the application having been made to the city solicitor and refused by that official. The syllabus in that case reads, in part:

“Under Sections 1777 and 1778, the plaintiffs who have been damaged in their property rights by a failure of the city to perform its legal duty or to carry out a trust as to streets, may sue the city to enjoin such continuing injury to them, and to enforce such trust, without first requesting the city solicitor to bring the action, providing the injury to them is different from that done to the public generally.”

We quote further from the court’s opinion, on page 478:

‘ ‘ One other question then remains to be settled in this action, whether these plaintiffs can bring this action notwithstanding this statute. Clearly we say, no; they cannot, if this is in the nature of the public coming to the court to get redress for the violation of this trust which they claim was upon the city of Cleveland, and which it must carry out towards and on behalf of the public. But if they are here in the nature of property rights which are and may be distinguished entirely from the rights of the general public, then we think this statute has nothing to do with a case of that kind.
“These parties bring this action, and while they say it is on behalf of persons having lands abutting upon these streets or these avenues, yet the whole complaint of this petition is that it injures these persons in a manner different from what it does the public generally. The public generally are discommoded by these obstructions in the street simply by having to take some circuitous route; so far as the facts in this petition state, these parties have not only that complaint to make, but their complaint is that their property is damaged by reason of these streets being so crowded and cramped by this market-house, by the renting of these spaces along the market-house in the streets; that their property is damaged by being cut off from the natural trade that it should have if this obstruction was not here. That is the complaint that is special to them and not lodged in the public generally, and that being the case, we think this statute does not reach a matter of that kind.”

In line with this authority is Mills v. Village of Norwood, 3 C. D., 465, 6 C. C., 305.

In Kuhn v. City of Cleveland, 1 C. C. (N. S.), 384, 15 C. D., 272, we quote from the opinion on page 386, which has reference to Sections 1777 and 1778, Revised Statutes, above noted, and sustains our view herein:

“Compliance with Sections 1777 and 1778 of the statutes was necessary only when the plaintiff brought his action in behalf of the public generally, and that one who has been damaged in his own property rights by a failure of the city to perform its legal duty * * * may sue the city to enjoin such continuing injury to him.”

In the case of State, ex rel., v. Roebuck, 2 N. P. (N. S.), 688, 15 O. D., N. P., 400, the court holds that there is no necessity, in a case like the one at bar, to make a request upon the city solicitor, and we quote from the syllabus, as follows:

“Sections 1777 and 1778, Eevised Statutes, authorizing the city solicitor to commence injunction proceedings to restrain the abuse of corporate powers and providing that in event of his failure to act at the request of any taxpayer the latter may commence proceedings on behalf of the municipality, apply only to cases where public rights are about to be infringed upon by the council or other authorities, and not where an individual is seeking the collection of an account against the city.”

And it may be noted that in the above case a demurrer was filed to the petition, under Sections 1777 and 1778, Eevised Statutes, and the court again refers to the distinction already noted above. "We quote the following:

“This section [referring to Section 1778, Eevised Statutes] undoubtedly applies to a case where public rights # * are about to be infringed upon by the council or other authorities, and not where an individual is seeking the collection of an account [a personal right].”

Therefore, from a review of the entire case, it is our holding that the court of common pleas was in error in sustaining the motion and making rulings of a similar nature, and, thus holding, the judgment of the lower court is hereby reversed, with instructions to the court of common pleas to overrule the demurrer.

Judgment accordingly.

Vickery and Levine, JJ., concur.  